The Issue Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner and based on the laboratory analysis of the test samples, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Tampa, Florida plant and the Petitioner's trucks. These samples were collected by a dairy plant specialist of the Respondent, and then in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104 (7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 25th day of May, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
The Issue This is a license discipline case in which the Petitioner seeks to impose an administrative fine on the basis of allegations in an Administrative Complaint in which the Respondent is charged with having violated the Florida Food Safety Act, Chapter 500, Florida Statutes.
Findings Of Fact 1. The Department of Agriculture and Consumer Services (Department) is the state agency charged with the responsibility for enforcement of the Florida Food Safety Act, Chapter 500, Florida Statutes. 2. At all times material to this case, the Respondent, Laste International, Inc, d/b/a Laste Supermarket, was the owner and operator of a retail food service establishment located at 1721 North Andrews Square, Fort Lauderdale, Florida. At all times material to this case, the Respondent has held a food service permit for the establishment. 3. On January 8, 2001, a Department representative inspected the Respondent's premises described above. At the time of the inspection, there were numerous conditions on the Respondent's premises that were violations of the Florida Food Safety Act. Among the violations observed on January 8, 2001, were the following critical deficiencies: ~ Failure to discard unsafe, adulterated or contaminated food. - Food on premises from an unknown and/or unapproved source. - Equipment or utensils that were not properly sanitized. - Failure to have hot and cold running water under pressure for warewashing sinks. - Failure to have hot and cold running water under pressure at handsink. - Failure to control the presence of insects. - Failure to control the presence of rodents. 4. As a result of the several critical deficiencies and numerous other deficiencies, the Respondent's establishment was given an overall rating of "poor," and the Respondent was advised that the premises would be reinspected two weeks later. The Respondent was also notified of several specific violations which required the removal of several specified items of food from the Respondent's establishment because the food items were adulterated or were from unapproved sources. In the food retail area of the Respondent's establishment there were insect droppings, rodent droppings, and rodent urine. Some bags of rice were adulterated by rodent excrement. Some cans of food were dented and rusted and unfit for human consumption. 5. As of the date of the inspection on January 8, 2001, the Respondent's establishment had a long history of unsatisfactory conditions. During the period of slightly more than three years from November 20, 1997 to January 8, 2001, the Respondent's establishment was inspected a total of 13 times by Department inspectors. During that entire period the Respondent's establishment was never rated as "good," and was rated as "fair" following only two inspections. On all of the other inspections prior to January 8, 2001, the Respondent's establishment was rated as "poor." This long history of unsatisfactory conditions was one of the considerations that led to the Department 's decision to impose an administrative fine when the Respondent had another "poor" inspection report as a result of the inspection conducted on January 8, 2001. 6. The Respondent's establishment was reinspected on January 25, 2001. On that date, for the first time in over three years, the Respondent's establishment received an inspection rating of "good." 7. The Department seeks to impose an administrative fine in the amount of $5,000.00. The fine the Department seeks to impose in this case is consistent with the administrative fines the Department has imposed on other permit-holders who had similar histories of unsatisfactory conditions in retail food service establishments.
Conclusions John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Fourth Floor 407 South Calhoun Street Tallahassee, Florida 32399-0800 Yves Corneille Laste International, Inc. 1721 North Andrews Square Fort Lauderdale, Florida 33311-4862
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order in this case imposing an administrative fine in the total amount of $5,000.00. gt | DONE AND ENTERED this |} day of July, 2001, in Tallahassee, Leon County, Florida. — ~~ L : MICHAEL M. PARRISH 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 LX day of July, 2001. COPIES FURNISHED: John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Fourth Floor 407 South Calhoun Street Tallahassee, Florida 32399-0800 Yves Corneille Laste International, Inc. 1721 North Andrews Square Fort Lauderdale, Florida 33311-4862 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser. The Respondent's Retirement Residence has a license for 13 or more residents. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.
The Issue The issue to be determined is whether Respondent violated the provisions of Florida Administrative Code Rule 65C- 22.004(3)(c), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Lil’ Angels is a child-care facility licensed pursuant to chapter 402, Florida Statutes. It has been open under the direction of Neshia Oglesby for approximately seven years. At the time of the incident giving rise to the Administrative Complaint in this case, J.A. was a five-year-old child attending Lil’ Angels. He had attended the facility “off and on” since he was a toddler. J.A. suffers from a host of allergies, including foods such as eggs, milk, peanuts, peaches, and hot dogs, and other substances such as cockroaches, grass, and pet dander. J.A.’s file at Lil’ Angels contained several forms, including a Department of Health Child Care Food Program “Medical Statement for Children with Disabilities and Special Dietary Conditions” form, dated January 10, 2011, that identified eggs, milk, peanuts, and hot dogs as foods to be omitted from his diet. It did not list any disabilities. Although the form required that any medical condition that restricts the child’s diet be identified, no medical condition was listed. His file also contained Authorization to Administer Medication forms, dated January 12, 2012, for the administration of an Epi-Pen JR (Epi-Pen), and Benadryl Elixir; Emergency Care Plans for the administration of certain medications; and information regarding his medical history as part of Lil’ Angels’ enrollment form. The authorization to administer the Epi-Pen stated, “severe allergic reaction to ingestion of nuts/peanuts/raw eggs/?milk.” Similarly, the Emergency Care Plan with respect to use of the Epi-Pen stated the following: If you see this: Do this: Itching, rash, hives after 1. Give Benadryl 2.5 ml ingestion of allergic foods PO . . . mild allergic Reaction Difficulty breathing, color 2. Give Epi-Pen JR + change after ingestion of call parent allergic foods. The portion of the Enrollment Form containing J.A.’s medical history indicated that he was allergic to “all nuts, tree nuts, peanuts, coconuts etc., allergic to eggs, allergic to peaches.” Under the allergies heading, the form stated that it was permissible to “give a little milk products, eggs, cheese,” but no pork or peanuts. Nothing on any of the forms stated that J.A. was so allergic to peanuts that he could not be around them; only that he could not eat them. Lil’ Angels had at least one other child with a peanut allergy. Her allergy is apparently limited to ingestion. Lil’ Angels at times provides craft projects for the children that involve the use of peanut butter. J.A. has participated in these projects in the past, with precautions, and had no apparent ill-effects from them. On Friday, January 31, 2014, the children in J.A.’s class at Lil’ Angels began an art project making bird feeders with pine cones, peanut butter, and birdseed. Miss Brandi was the instructor working with the children. The other children then had a snack with peanut butter and apples while J.A. had apples and caramel. There were no reports of J.A. suffering any ill effects after this activity. On Monday, February 3, 2014, the children worked on finishing the project. Ms. Brandi was the only person who testified that was present during the Monday morning activities, and her testimony was detailed and persuasive, and is credited. There were approximately 11 children in the group. Ms. Brandi gave all of the children their pine cones, and because of J.A.’s allergy, she sat with him during the project. Once everyone had their pine cones, she had J.A. put on gloves, and then let everyone else get their peanut butter. Once the other children got their peanut butter, there was just a small amount left. Ms. Brandi then put a small amount of peanut butter on a spork, which she then handed to J.A., and let him spread the peanut butter on his pine cone using the spork. Ms. Brandi, who was sitting with J.A. and assisting him because of his allergies, was adamant that he did not eat any peanut butter and her testimony is credited. Because there was very little peanut butter for J.A. to use, he was the first child to wash his hands and go to the rug for book time. While he was on the rug, the other children continued to work on their projects. Once they finished, the other children washed their hands, and joined J.A. on the rug for book time. Ms. Brandi then wiped down the tables, using soap and water followed by bleach and water, and cleaned the bathrooms. It is unclear from the record, but it appears that she cleaned while the children were having book time. After book time, the children lined up and got ready to go outside, where they played a game that involved a lot of chasing each other around the playground. J.A. participated in the activity, and the playground time lasted approximately 45 minutes. After the playground time, the children lined up to get some water, then went inside to wash their hands and sit at the table. J.A. was near the front of the line to wash his hands, and sat down at the table. Ms. Brandi noticed at this point that he was sniffling and scratching his eyes. She did not see any swelling. Ms. Brandi asked him if he was okay, and J.A. said, “no.” Ms. Brandi then contacted Neshia Oglesby, the daycare center’s director, who took J.A. out of the classroom. It was approximately 11:00 a.m. at this point. Ms. Oglesby called J.A.’s mother, but was unable to reach her. She then called Sally Ackerman, J.A.’s grandmother, and told her that she believed J.A. had an allergic reaction. Ms. Ackerman had to unload items from her car at her place of business so as to have room to transport J.A., and arrived at the daycare at around 11:30. By this time, J.A. was upset and had been crying. Ms. Ackerman described him as red, itchy, and swollen. It was also at least one and a half hours since the craft activity. J.A. is a shy, reserved child, and was wearing long pants because it was cold outside. Ms. Oglesby’s testimony that he did not want to pull down his pants to allow her to administer the Epi-Pen is credited. Ms. Ackerman acknowledged that J.A. did not want Ms. Oglesby to pull down his pants, and that he probably was more comfortable when Ms. Oglesby turned her head to give him some privacy. Instead of Ms. Oglesby administering the Epi-Pen, she read the directions to Ms. Ackerman and walked her through the administration of the device. All of the workers at Lil’ Angels had been trained in the use of an Epi-Pen, but some, including Ms. Brandi, had never actually used one. Ms. Oglesby had used an Epi-Pen in the past, but did not want to here because J.A. is very shy and was already very upset. After the Epi-Pen was administered, J.A. started to improve immediately. His mother then arrived and took him to the emergency room for evaluation. Ms. Oglesby called J.A.’s mother after the incident to make sure he was alright. However, J.A. never returned to Lil’ Angels. J.A.’s mother sent an unsigned note on hospital letterhead to the facility indicating the need to clean all surfaces to ensure the removal of any peanut residue, and to make sure that J.A. was not in the presence of peanuts or peanut oils. Lil’ Angels had already cleaned the surfaces, and engaged in retraining of its staff, including having a physician whose child attended the daycare come speak to the staff about peanut allergies. Pat Medico is the family services counselor who inspects Lil’ Angels for the Department. She investigated the incident involving J.A. in response to a complaint received by the Department from the Early Learning Coalition, who apparently received a complaint from J.A.’s parent. She spoke to Ms. Oglesby and Ms. Dea, the assistant director of the daycare. Ms. Dea was not present on February 3, and Ms. Oglesby was not in the room during the craft project. Ms. Dea, who did not testify at hearing, related similar information to that provided by Ms. Oglesby and Ms. Brandi that J.A. had been in the same area as peanuts in the past with no problems. Ms. Medico was concerned that the daycare allowed J.A. to participate in an activity involving peanuts, saying that a peanut allergy can become airborne “at any time.” She believed that the doctors’ use of the word “ingestion” did not lead her to believe that only an ingested peanut can cause a problem for the child. However, no evidence was provided to indicate that Ms. Medico has the qualifications to express what is clearly an expert medical opinion regarding the scope of peanut allergies. No doctor who treated J.A. and no one specializing in the treatment of allergies testified in this proceeding. Therefore, the scope of J.A.’s allergy and the ability (or lack thereof) of the allergy to become airborne has not been established. No information regarding the instructions on the Epi- Pen’s original container label or the Epi-Pen’s printed manufacturer label was offered into evidence. Ms. Medico was also disturbed that Ms. Oglesby rejected her suggestion that the facility become a “peanut-free facility,” feeling that her reaction to the suggestion (a statement that they were not going to do that) was indicative of not taking the issue seriously. Ms. Oglesby, on the other hand, stated that she felt it was misleading to advertise as a peanut-free environment when so many foods are processed in environments where peanuts are also processed, and the facility could not guarantee that substances processed in these environments are not present. Ms. Oglesby also believes that the reaction may have been to something other than peanut butter, given both the number of allergies J.A. suffers and the length of time between the craft project and J.A.’s first visible symptoms. Ms. Oglesby has a valid point: there is no way to know on the record presented what exactly caused J.A.’s symptoms. However, even assuming for the moment that the allergic reaction was to peanut butter, there was nothing to alert the daycare at the time of this incident that J.A. could suffer from the simple exposure, as opposed to ingestion, of peanuts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of December, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of December, 2014.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Ralph Cosio, Jr., is a white male born on April 1, 1939. On November 1, 1965, he began employment with respondent, Metropolitan Life Insurance Company (MLIC), a large insurance company that offers various personal and group insurance lines throughout the United States. The parties have stipulated that MLIC is an employer within the meaning of the Florida Human Rights Act. Cosio was assigned to MLIC's Tampa, Florida office where he spent his entire tenure with the company. He initially sold personal life insurance, but some fifteen months later Cosio was promoted to the position of sales manager of the Tampa office, a position he held until January 1978. During this period, Cosio's performance was exemplary. In January 1978, and at his own request, Cosio was transferred to group sales, and specifically to the "Met 50 Plus" plan, a new MLIC marketing concept which targeted employers with fifty to one hundred and ninety-nine employees. In his new position as a group sales representative, Cosio dealt with MLIC agents and independent brokers who requested quotations for group rates for businesses which qualified under the Met 50 Plus plan. Cosio continued in the area of group sales for the next ten years. He was highly successful during the years 1978 through 1982 when he was rated among the top ten to twelve salespersons nationwide in the Met 50 Plus plan and named to the Leaders Conference, a MLIC award level for top producers. When he began in group sales, Cosio was a sales representative. In early 1983 Cosio was named senior group representative and in January 1984 was promoted to territorial sales director (TSD) for the southeastern region of the United States. In the latter position, of which there were only six nationwide, he supervised Met 50 Plus group sales in some seven or eight states. He held this position until the last half of 1986. During the period 1979 until late 1986 there were no negative evaluations, memoranda or comments concerning petitioner. In the latter part of 1986 Cosio was reassigned from the position of TSD to a senior group sales representative, and was concurrently assigned to market a new group insurance program for employers with more than twenty-five employees but less than fifty. Whether Cosio did this voluntarily is not of record, but he did desire to eliminate the extensive traveling required of a TSD and to remain in Tampa. In any event, the new program was known as "25 to 49 Lives," was considered an expansion of the Met 50 Plus program, and targeted smaller employee groups. Beginning in late 1986 and continuing through 1987, Cosio specialized in selling MLIC products to the "29 to 49 Lives" groups within the State of Florida. It is noted that MLIC had never before actively marketed its product to that size employer and was now doing so only in a few test sites across the country, including Florida. However, in order to assist Cosio in increasing his sales and making the new program a success, Cosio was given the exclusive right to sell the new product in the entire State and to deal with both independent brokers and MLIC agents. When Cosio transferred back to group sales, he was replaced as TSD by Lou Orsi. Both Orsi and petitioner agreed that the product for 25 to 49 Lives was not competitively priced and that its pricing structure made sales more difficult. As a consequence, Cosio was authorized to sell insurance at a rate 20% to 25% below the MLIC prices charged in other states. Even so, the anticipated volume of sales in Florida never materialized. However, in 1987 Cosio received some limited recognition from MLIC for his efforts, and his performance that year was rated satisfactory. In January 1988, the 25 to 49 Lives program was terminated in all states, including Florida, and Cosio returned to marketing the Met 50 Plus product, which is the same product he had sold from 1979 through 1983. MLIC has not attempted to market the "25 to 49 Lives" product since that time. On November 1, 1987 Harold Sowders, who is a year or so older than Cosio, replaced Orsi as TSD of the southeastern region. Just prior to that, Charles Cummings, who is seven years younger than petitioner, became managing group sales representative in the Tampa office and was Cosio's immediate supervisor. Sowders began reviewing the sales performance of employees in the region, including Cosio, and concluded that Cosio's 1987 production was unsatisfactory. He reached this conclusion because, even though Cosio had submitted a number of proposals to underwriting for quotations, he had only closed four sales for the entire year. Moreover, Cosio's net result for 1987 was a minus $119,000. This meant that after the new business generated by the four sales was subtracted from previous business that was not renewed, the net result was a minus $119,000 on a premium basis. Sowders concluded that these results were unsatisfactory given Cosio's long tenure with MLIC, his statewide exclusivity for selling the product and the 25% discount in price previously established. In January 1988 Cosio was offered the option of returning to the Met 50 Plus plan or remaining in the 25 to 49 Lives program (which was terminated shortly thereafter). Cosio elected to return to the Met 50 Plus program and was assigned to share the Tampa Bay area with Cummings. In addition, Cosio was given exclusive sales rights for that product in an area north of Tampa. Although Cosio and Cummings both complained that the Tampa area was too small for two agents, Sowders did not agree with this assessment and made no changes. Also, in late 1987, Cummings informed Cosio that his sales objectives for 1988 were fourteen new cases (closed sales) and $1.5 million in premiums. Shortly after his return to the mainstream program, Cosio requested the opportunity to sell the product in the Miami area while working out of the Tampa office. This was because Cosio had experienced his most successful sales effort in the Miami area during the years 1979 - 1983, partly due to the fact that he is fluent in Spanish. This request was denied by Sowders on March 4 on the ground MLIC intended to establish a full time manager in the Miami area, something Sowders did shortly thereafter. On March 4, 1988 Sowders informed Cosio by memorandum that he should produce twenty-three proposals and three sales by April 1, 1988. According to Sowders, this was consistent with the annual sales objective of fourteen per year for group agents given to Cosio by Cummings in late 1987. Cosio was also told there must be "an immediate and substantial improvement" in his sales activities. This admonition was placed in the memorandum because Cosio had generated only three underwriting submissions, one formal proposal and no sales (based on 1988 activities) during the first two months of 1988. However, Cosio did close one sale relating to a proposal submitted in December 1987. Finally, Cosio was told to develop a written "business plan" setting forth his goals and means for obtaining the prescribed sales objectives for the remainder of 1988. Between March 4 and April 15, 1988, Cosio had no activity whatsoever in terms of submissions, proposals or sales. Sowders relayed information concerning this lack of activity to Barry McNamara, national sales director. On March 30, Cummings reminded Cosio of Sowders' requirement that Cosio prepare a written business plan. In response, Cosio prepared a letter on April 4 questioning whether the Tampa Bay area could support two salespersons. Cummings again requested a business plan on April 7. On April 21, Cosio submitted a one- page business plan to Cummings who then advised Sowders that he was dissatisfied with the response. Sowders also considered the plan to be "woefully short" of a professional strategy. In July 1988 Sowders reduced Cosio's 1988 sales objectives from fourteen sales to ten sales with annual premiums of $1 million. Up to that point, Cosio had no closed sales relating to 1988 activities. Until June, Cosio was authorized to deal with both MLIC agents and independent brokers. The record establishes that "selling the brokers" was a better market than selling to MLIC agents because brokers are more specialized in group sales. In addition, Cosio had been given exclusive rights (except for the Miami area) to deal with MLIC agents in Florida, who numbered between three and four thousand, and he was authorized to sell the complete portfolio of products, including the multi-option sale to market through agents. Even so, during the first five months of 1988 he submitted only three proposals. This was far below the number of proposals typically needed to generate sufficient sales to reach the prescribed sales objectives. After June, Cosio was limited by Sowders to dealing only with MLIC agents, and not independent brokers, which admittedly made sales more difficult. However, Sowders' thinking was that Cosio had dealt with MLIC agents for many years and had previously been given the exclusive right to deal with agents in all areas of the state, except the Miami area. Thus, he concluded that Cosio would not be severely hampered by the restriction. On August 2, 1988, Cummings wrote a letter to Cosio advising that Cosio's sales performance was extremely disappointing and that there must be an immediate and substantial improvement. Further, Cosio was warned that if he failed to meet his minimum requirements, he would be issued a final warning with a view towards terminating his employment. By September 1988 Cosio's performance had not materially improved. He did make two sales in August 1988 but his year to date proposals numbered only seven. Sowders accordingly established a fourth quarter sales objective of three. On October 22, 1988, Cummings again wrote to Cosio informing him that he had failed to meet his objectives. Also, Sowders discussed Cosio's poor performance with him on no less than four occasions during the year and repeatedly informed him that his performance was unacceptable. Based upon Cosio's prospect calls, sales and number of hours worked, Sowders reached the conclusion that Cosio had not made a good faith effort to sell insurance in 1988. In mid-1988 MLIC made a decision to acquire the group insurance business of Allstate Insurance Company and to merge MLIC's group business with Allstate's group business and that of Health Care Network, a MLIC subsidiary. According to the national sales director, this resulted in a "combined book of business ... not large enough to support the sales force of those three agencies." Consequently, MLIC management declared a surplus of eighteen employees in the Met 50 Plus Plan, which meant that it intended to terminate, relocate or offer other positions to eighteen MLIC group employees. A decision to surplus various Allstate and Health Care Network employees was also reached. Faced with the prospect of deciding which eighteen employees would be declared surplus, MLIC group sales management began an evaluation process of all current Met 50 Plus employees. This required each supervisor, such as Cummings, to evaluate the performance of all employees under his supervision during the prior two or three year period and to submit that evaluation to the TSD. After these evaluations were reduced to writing they were discussed at several meetings attended by McNamara and the TSDs in the fall of 1988. As national sales director, McNamara made the final decision but relied on the recommendations of the TSDs. The evaluations rated each of the approximately fifty MLIC salespersons in the categories of "sales ability", "sales record" and "management skills" by giving them a plus, minus, not applicable or question mark. The ratings for Cosio were made by Cummings, Cosio's immediate supervisor, and approved without change by Sowders. Under the evaluation process employed by McNamara, the employees with the highest performance ratings were to be retained while those with lower performance ratings would be declared surplus. Cosio was the only person of the more than fifty evaluated who was given a negative rating in all three categories. This meant he was considered to be unacceptable in all categories. Cummings reached this conclusion based upon the fact that Cosio's production was the worst of any employee on a prorated basis in 1988. Indeed, Cosio had closed only three sales for the entire year and had submitted less than twenty-four proposals. By comparison, Cummings used his own 1988 performance of eleven sales as a measuring stick. Cummings had closed that number of sales even though MLIC's overall business in the last quarter of 1988 was "slow" and sales had declined. Based upon this evaluation, Cosio was determined by McNamara to be surplus. Besides Cosio, five employees in the same region, all younger in age but not salesmen, were surplused. However, one sales representative in the Florida region who was older than petitioner was retained. In all, eleven sales representatives in other regions, all younger than petitioner, were terminated. In January 1989 Cosio was told he was being surplused effective the end of the month. Although respondent made an effort to place surplus employees within the group organization, there were no openings at that time. Cosio was offered a job selling personal insurance with MLIC in the Tampa area but declined the offer since MLIC policy required all new life insurance agents to take a non-waivable, written examination. Cosio considered that an insult to a person with more than twenty years of experience, and he considered the offered salary, which was approximately one-half of his previous salary, to be inadequate. He was also aware of the fact he had not sold personal insurance since 1967. Cosio also received an offer from Gulf Life Insurance Company, but he didn't think it would be "the best use of his abilities." Since his termination, Cosio has acted as an independent broker consultant, albeit with very limited success. He has also applied for sales positions with a number of companies but has not received a job offer. It is noted, however, that the numerous job applications proffered into evidence by Cosio at hearing were not submitted to those companies for a number of months after being terminated by MLIC, and the earliest reply was received by him on October 27, 1989. As of the date of the first hearing (April 25, 1990), Cosio had earned only $1,253.07 during 1990 and had been forced to dip heavily into his retirement funds to subsist. Had he been employed by MLIC in 1990, Cosio estimated he would have earned at least $50,000 in salary and commissions. Petitioner contends that Sowders made certain disparaging remarks about him which prove he was the victim of age discrimination. According to Cosio, he was told by Cummings that after Cummings advised Sowders in August 1988 that Cosio had made two sales that month, Sowders responded that petitioner was "too old, too fat and did not fit the corporate image", and that if he kept making sales "we're stuck with him." Although at hearing Sowders denied making the statement, and Cummings denied he had relayed this information to Cosio, their denials are not deemed to be credible and it is found that such statements were made. Although Cunningham claimed that Cummings made a statement to him on June 21, 1990, that he (Cummings) had lied at the April 25, 1990 hearing, Cummings did not recant his testimony when given an opportunity to do so at the September 12, 1990 hearing. He also denied making that statement to Cunningham. The undersigned has taken this into account in judging the credibility of Cummings' testimony, and this is embodied in part in finding of fact 21.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief be DENIED. DONE AND ORDERED this 18th day of September, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1990. APPENDIX Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 1 and 2. Partially adopted in findings of fact 3 and 4. Partially adopted in findings of fact 5 and 6. Partially adopted in findings of fact 7 and 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in findings of fact 11-13. Partially adopted in findings of fact 15 and 16. Partially adopted in finding of fact 17. Partially adopted in findings of fact 17 and 21. Partially adopted in findings of fact 19 and 20. 13-14. Partially adopted in finding of fact 20. Respondent: 1-2. Partially adopted in finding of fact 1. 3. Partially adopted in finding of fact 2. 4. Partially adopted in finding of fact 5. 5. Partially adopted in finding of fact 10. 6. Partially adopted in finding of fact 11. 7. Partially adopted in finding of fact 10. 8. Partially adopted in finding of fact 11. 9. Partially adopted in finding of fact 10. Partially adopted in findings of fact 7 and 8. Partially adopted in finding of fact 11. Partially adopted in finding of fact 12. Partially adopted in findings of fact 13-14. 14-15. Partially adopted in finding of fact 14. 16-17. Partially adopted in finding of fact 15. 18-20. Partially adopted in finding of fact 17. 21. Partially adopted in finding of fact 17. 22. Partially adopted in finding of fact 11. 23. Partially adopted in finding of fact 17. 24. Partially adopted in finding of fact 11. 25. Partially adopted in finding of fact 12. 26-28 Partially adopted in finding of fact 15. 29-41. Partially adopted in findings of fact 18 and 19. 42-49. Partially adopted in finding of fact 20. Partially adopted in finding of fact 21. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially adopted in finding of fact 21. Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence or a conclusion of law. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mark S. Herdman, Esquire P. O. Box 75638 Tampa, FL 33675-0638 Anthony C. Ginetto, Esquire Metropolitan Life Insurance Company Law Department, Area 7-G One Madison Avenue New York, NY 10010-3960
The Issue The administrative complaint, as limited by the abandonment of certain charges at the final hearing, raises four issues about the operation of the respondent's business. These include whether at the time of inspections on August 11 and September 3, 1986, the respondent was a food service establishment which had on its premises food which was not from an approved source; whether it failed to provide dishwashing facilities; whether it failed to provide hot and cold running water under pressure; and whether it failed to provide adequate toilet facilities.
Findings Of Fact France To You Coconut Grove, Inc., operates at 3199 Commodore Plaza, Miami, Florida, in the area known as Coconut Grove. At that location the corporation sells magazines, newspapers, post cards, greeting cards, cigarettes and, at one end of the store, has freezers containing food for sale. The entire facility is comprised of about 900 square feet, and has a single restroom. There is no space for a second restroom. The existing restroom is generally not made available to the public because to reach it, it is necessary to go through a storeroom containing the facility's merchandise. Non-employees therefore are not permitted to use the restroom. Prior to August, 1986, patrons could purchase food in sealed microwaveable packages from the freezer. It would then be heated and made available to the customer on paper plates with plastic, single-use utensils to be consumed outside the premises on a deck containing tables and chairs which France To You had made available. As the result of an article which appeared in the Miami Herald in early August, 1986, which indicated that gourmet food was sold at France To You, the health department sent an inspector, Mr. Hoffman, to the establishment. Hoffman saw people eating on the deck outside France To You. He met with the manager of the facility, Mr. Taylor. Mr. Taylor became distressed when the health department asserted that France To You fell under its jurisdiction. Mr. Hoffman asked Mr. Taylor to come to the health department offices for a planned review. Mr. Taylor did so and after initially meeting with a planned review officer, Mr. Taylor demanded to see someone more senior. During the meeting Mr. Taylor explained he planned to heat for patrons food purchased at France To You, which would be consumed on the deck outside. It was arranged that the administrator of the Dade County Public Health Department, Mr. Livingstone, would come to the Taylor establishment, which is something the administrator ordinarily leaves to regular inspectors. On August 11, 1986, Mr. Livingstone came to France To You with Mr. Ros, the Assistant Director, and Mr. Diaz of the State Department of Business Regulation, Division of Hotels and Restaurants. At that meeting Mr. Livingstone found that the freezers contained prepackaged food, which people were eating on the deck outside the establishment. There was also a Mr. Coffee machine on the premises, but it was used only for employees, not to sell coffee to customers. When Mr. Livingstone attempted to explain the requirement of the sanitation code to Mr. Taylor, Mr. Taylor became abusive and the conversation ended. There were no dishwashing facilities or three- compartment sink at France To You on August 11, 1986, and no hot water in the restroom or hot and cold water under pressure in the food preparation area, i.e. the area where the food was heated and transferred to paper plates for consumption. The prepackaged containers of food came from another France To You store on Mills Drive near the Town and Country Mall in south Dade County. That store has a market license which permits it to sell food, but it does not hold a processing license; the Mills Drive facility has not been approved by the Dade County Health Department to process food that would be packaged for sale at another location. It would have been possible for the food portions sold in Coconut Grove to have been prepared by a food processing plant inspected and approved by the Department of Agriculture or the Food and Drug Administration. There was no evidence presented that the food processing plant which was the source of the food portions at France To You was unapproved by the Department of Agriculture or the Food and Drug Administration. The premises were then reinspected by Mr. Hoffman of the Dade County Department of Public Health, and the supervisor for the area, Mr. Petty, on September 3, 1986. That inspection revealed that food was still being prepared and served on the deck outside where people consumed it. There were no dishwashing facilities or three compartment sink to wash and sanitize any food service equipment. Hot and cold running water under pressure was not available where the food was prepared, which is required to minimize the possibility of hand- to-mouth contamination of food. There was not a second restroom available for patrons. While the inspection report and the testimony of Mr. Hoffman would indicate there were some other violations found that day, such as smoking in the food preparation area and the absence of a thermometer in the freezer cases, those matters are not charged in the administrative complaint and therefore not relevant in this proceeding. A reinspection, following up on that done by Mr. Hoffman and Mr. Petty on September 3, 1986, was performed by Mr.Louis Ron of the Dade County Public Health Department on September 9, 1986. Mr. Ron was accompanied again by Mr. Petty. At the time of the reinspection the violations which had been filed by Mr. Hoffman had not been corrected, i.e. there was still no three-compartment sink, there was only one restroom, and there was no hot water in the handwashing sink in the food preparation area. Mr. Ron inspected the premises again on January 16, 1987. At that time Mr. Ron observed microwave ovens which were dirty and had not been cleaned, that there was no facility for sanitizing utensils being used by the establishment, in that there was no dipper well for the ice cream service operation which then had been installed on the deck, but there was a handwashing sink for that ice cream service. While a three- compartment sink had been installed, there was no running water yet connected to it. Finally, another inspection of the premises took place by Mr. Hoffman on April 2, 1987. At that time, the food service operation had expanded to include grills and stoves installed on the deck for the preparation of food items such as hamburgers, hotdogs, chili, eggs and bacon, as well as ice cream being served at the deck. Photographs of these food service activities taken by Mr. Hoffman were admitted into evidence. There may be other food service establishments in the general Coconut Grove area which do not provide two public restrooms, such as the Subway Sandwich Shop.
Recommendation It is recommended that a Final Order be entered finding the facility to have violated Rules 10D-13.027(1) and 10D-13.027(5), Florida Administrative Code, and imposing an administrative fine of Four Thousand Five Hundred ($4,500) Dollars, pursuant to Section 381.112, Florida Statutes (1985). DONE AND ORDERED this 17th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4500M The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: France To You is a food service establishment as covered in the conclusions of law. Covered in finding of facts. Sentence 1 rejected because there is inadequate proof concerning whether the food source was approved by governmental entities other than the Dade County Health Department. Sentences 2 and 3 covered in findings of fact 2 and 7. Covered in finding of fact 4. Covered in findings of fact 5, 6 and 7. Rejected as unnecessary. Covered in finding of fact 4, except as to the coffee service, which is covered in finding of fact 6. Rejected due to the inadequate evidence concerning the licensure status of the food processor. Covered in findings of fact 10 and 11. Rejected as unnecessary, and because there is inadequate proof that the respondent sold any coffee to patrons. Covered in finding of fact 14. Covered in finding of fact 12. Covered in finding of fact 13. Covered in finding of fact 3. Covered in finding of fact 14, but relates only to assessment of penalty not to a violation. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Not adopted because Mr. Taylor's testimony concerning the availability of restrooms at other establishments is not relevant to determining whether the operation of France To You is one which requires two restrooms. Covered in finding of `fact 2. Covered in finding of fact 2. Rejected as unnecessary. Covered in finding of fact 13. Rulings on Respondent's Proposed Findings: Covered in findings of fact 5 through 7. That no inspector actually saw food being prepared, as opposed to food being consumed by patrons of France To You, is not significant. The evidence supports the inference that France To You was serving food. Rejected because inspectors observed patrons eating food at the establishment in August and September of 1986. Generally adopted in finding of fact 6. Although there is inadequate proof that the source of the food sold had received FDA approval, that is not the issue presented. To impose sanctions, the Department of Health and Rehabilitative Services had to prove that the source of the food had not received FDA approval, which it failed to prove. The burden of this finding is adopted in finding of fact 6. Rejected for the reasons given in ruling on proposal 1. Covered in finding of fact 9. Rejected because the inspection performed on January 16 indicated that there was no running water connected to the three-compartment sink. To the extent that the finding includes a proposal that there was a handwash sink with hot water is covered in finding of fact 13. Rejected because the evidence gives rise to the inference, which the Hearing Officer makes, that food was being served prior to January 1, 1987. Rejected as inconsistent with the testimony of the health department inspectors which has been credited. No findings have been made with respect to advertisements because it is unnecessary to do so. Omitted. Rejected because the type of licensure which France To You Food Service Corporation had for the facility on Mills Drive was not a license to process food to be sold elsewhere. Rejected as irrelevant. Whether other establishments may be violating the law does not excuse any violations by France To You. COPIES FURNISHED: Morton Laitner, Esquire Department of Health and Rehabilitative Services 1350 North West. 14th Street Miami, Florida 33125 Michael A. Vandetty, Esquire DIENER & SHAPIRO, P.A. 1790 West 49th Street Suite 312 Hialeah, Florida 33012 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
