Findings Of Fact On March 6, 1991, Mr. Leonard Baldwin, an inspector for the Department of Professional Regulation, inspected the salon known as Wonderful Hairweaving #2, located at 1439 Northeast 4th Avenue, Fort Lauderdale, Florida 33304. At the time he entered, the owner of the establishment, Kettly Guilbaud, was not present. Mr. Baldwin found two persons working at the salon; one person, a lady who identified herself as Rachel Guillaume, was placing chemicals on the hair of a patron as part of giving a permanent to the patron. The gentleman, who identified himself as St. Armond Iout, was cutting the hair of another patron. Both acknowledged that they had no license from the Department of Professional Regulation to perform cosmetology. Ms. Rachel Guillaume stated that she had only been at the salon for two days and was just there to help out a friend. It is not clear whether this was meant to mean that she was helping Ms. Guilbaud, the owner of the shop, or the person whose hair was being permed. It is more likely that she meant that she was helping Ms. Guilbaud. See Finding 6, below. Mr. Baldwin was not able determine how long Mr. Iout had been working there because of Mr. Iout's great difficulty with English. A customer translated for Mr. Iout, who told Mr. Baldwin through the customer that although he was cutting a man's hair, he did not work there. This is not believable. Mr. Baldwin also found sanitation violations at the salon, in that the implements available for use had not been sanitized, and they were kept in a drawer which was not clean. The sanitation rules were not displayed at the shop. Ms. Guilbaud testified that Rachel Guillaume was there only to answer the telephone and to make appointments for customers who would either call or come to the shop. Ms. Guilbaud was away at another location which she was preparing to open as an additional salon. She also testified that St. Armond Iout was there because the electrical inspector from the City of Fort Lauderdale was to come to the salon to look at some electrical wiring and that Mr. Iout was there only to meet the inspector. In view of Mr. Iout's very limited fluency in English this is unlikely, for he could have been no assistance to the electrical inspector. Rachel Guillaume could have admitted the inspector to the shop. I find the testimony of Mr. Baldwin persuasive, that both Ms. Guillaume and Mr. Iout were either perming or cutting hair. Neither were at the salon for the limited purposes described by Ms. Guilbaud. I accept Ms. Guilbaud's testimony that both Ms. Guillaume and Mr. Iout are not fluent in English, but Mr. Baldwin has not been confused by difficulties in understanding either Ms. Guillaume or Mr. Iout. What is significant is what Mr. Baldwin observed, not what Ms. Guillaume or Mr. Iout tried to explain to him.
Recommendation It is RECOMMENDED, based upon the foregoing findings of fact and conclusions of law, that a final order be entered by the Board of Cosmetology finding Kettly Guilbaud, doing business as Wonderful Hairweaving #2, to be guilty of the acts alleged in Counts I and II of the Administrative Complaint, and that a fine of $600 be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June 1992. Copies furnished: Roberta Fenner, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kettly Guilbaud, pro se 1439 Northeast 4th Avenue Fort Lauderdale, Florida 33304 Ms. Kaye Howerton Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact During the applicable time period, the Respondents held a valid Division license for L'Orient Express Restaurant, license number 39-0587R, located at 4815 West Laurel Street, Tampa, Hillsborough County, Florida 33607- 4507. This license will expire on February 1, 1989. On December 19, 1988, the premises of the restaurant were inspected by Kristine Turnbull, an Environmental Health Specialist. Ms. Turnbull is employed by the Hillsborough County Health Unit, which is part of the Department of Health and Rehabilitative Services. During the inspection, Ms. Turnbull tested egg rolls, pork, and shrimp within the restaurant in order to determine whether these foods were being kept at the proper temperatures which would prevent such foods from becoming contaminated. The tests performed by Ms. Turnbull revealed that these foods were being kept at temperatures of 60 degrees F., 50 degrees F., and 50 degrees F., respectively. Ms. Turnbull observed ten to fifteen roaches run out of the dishwashing machine during the inspection. The Respondents have made an effort to prevent roach infestation by employing Doug Boyer's Pest Control, Inc. The premises are sprayed for roaches by the company on a monthly basis. In between these scheduled visits, Mr. Le sprays for roaches after the restaurant is closed at night. Ms. Turnbull observed fresh rat droppings in the restaurants storeroom during the inspection. Beds and blankets were found within the premises by Ms. Turnbull. However, the platform which the inspector believed was a bed, was actually a makeshift stage used for live band performances. This stage was wrapped in colorful cloths for decorative purposes. On the date of the inspection, the dishwashing machine was not working properly. Insufficient amounts of chlorine were dispensed into the water which was supposed to clean and sanitize the dishes, glassware, and eating utensils. Once the Respondents learned of the problem, the machine was promptly repaired and restored to working order. Floors, walls, and ceilings were found to be poorly maintained and in need of extensive cleaning. Ms. Turnbull found the stove, the stove hood, the fryer, and the wok covered with a thick grease film which appeared to have been built up over an extended period of time. This equipment, along with the slicer and knives used in food preparation, were in need of extensive cleaning. Old food was encrusted in areas of the slicer and knives where such build up could occur. The conditions observed by the inspector are contrary to the sanitary practices set forth in Chapter 10D-13, Florida Administrative Code. All food service establishments in Florida are required to adhere to these sanitary practices. The rules were promulgated by the Department of Health and Rehabilitative Services pursuant to Chapter 381, Florida Statutes. Based upon the rule violations discovered during the inspection, L'Orient Express Restaurant was condemned by Donald Kwalick, Director of the Hillsborough County Health Unit, on December 20, 1988. On December 20, 1988, the Director of the Hillsborough County Health Unit sent a memorandum to the Director of the Division. The memorandum informed the Director that L'Orient Express Restaurant had been closed. Restaurant conditions which caused the director of the county health unit to close the restaurant were described in the memorandum. The Director of the Division issued a Notice to Show Cause why the licensed issued by the Division should not be suspended or revoked, based upon the condemnation of the restaurant, and the conditions described within the memorandum. Three prior consent orders have been issued by the Petitioner against the Respondents for sanitary code violations at L'Orient Express Restaurant within a ten month period.
Findings Of Fact Respondent was licensed for the years 1977 and 1978 with the current license No. 080018 valid until 1 January 1979. During an inspection of Adams Rooming House in Belle Glade, Florida on 20 April 1977 only one fire extinguisher was located on each floor of the two floors used for rental units, numerous extension cords running from the same outlet were observed in the rental units, in the public toilets on each floor the bulbs were missing from the lighting fixtures, screens on windows were torn or missing, window was missing in toilet, doors on toilet split, no designation of sex on any bathroom, some windows in units boarded up with full panel doors, other windows had torn screens and broken jalousies, trash, junk and garbage littered on ground in vicinity of dumpster, and there were areas on stairways, landings and porch with railing missing. Respondent was notified of these violations. At an inspection on November 14, 1977 the proper number of fire extinguishers were present but two were empty. There was a direct conflict in the testimony regarding the fire extinguishers with neither witness saying how he ascertained the extinguisher empty or not empty. Accordingly, this alleged violation will be disregarded hereafter in this Recommended Order. At this inspection all of the other violations previously noted were still extant and some doors were also boarded up. No windows had both good screens and unbroken panes. Respondent was notified of these violations. On January 3, 1978 another inspection was conducted in company with Gilbert Adams. All violations previously reported were still uncorrected at this time. The premises were again inspected January 24, 1978 and all violations previously found remained uncorrected. At an inspection on March 8, 1978 the fire extinguishers had been recharged. When inspected again on April 10, 1978 the violations were still uncorrected. On April 25, 1978 an inspection was conducted in company with Adams. At this inspection some screening had been replaced, some windows and railings corrected, the grounds around dumpster had been cleaned, the doors to the bathrooms had been repaired and they had been designated for use by sex. However, all doors and windows were not corrected, some windows were still fully boarded up, bulbs were missing from fixtures in bathrooms, some railings were still loose, and the basic violations remained but not as many as before. On 25 January 1978 (Exhibit 2) Respondent executed a stipulation in which he agreed to pay a civil penalty of $25 and to correct all the violations previously reported within 30 days. The inspection conducted on 8 March was the follow-up inspection to ascertain if the violations had been corrected pursuant to the stipulation. Respondent contends that the rooming house caters principally to transients and that every time he puts bulbs in the bathrooms they are removed by the tenants; that tenants and passersby throw trash at the dumpster rather than put the trash in the dumpster; that he has a man who does repairs and cleanup at the rooming house; that he can't keep screens in either the unit windows or the bathrooms; that some tenants asked him to have their window boarded up to provide greater security; and that tenants disregard the sex signs placed on the bathrooms and will use whichever bathroom is vacant. Respondent does not visit the units frequently but does come to collect rent when due. He also contends that it is virtually impossible to keep tenants from running numerous extension cords from the same fixture. This is undoubtedly true if there are insufficient outlets in the rental units. Additionally, Respondent testified that he has the walls washed occasionally and provided paint to one tenant who wanted to paint his unit. He further stated that the units have been painted but the frequency of this painting was unclear. Proposed findings of fact submitted by Petitioner and Respondent have been considered. Those inconsistent with the facts noted above were not supported by testimony deemed credible. Those proposed findings not included herein were deemed immaterial to the results reached.
The Issue The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.
The Issue Whether the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, should be disciplined for violating Section 477.029(1)(i), Florida Statutes (1985)?
Findings Of Fact At all times relevant to this proceeding the Respondent, Terry John Conley, was licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida. Mr. Conley's license numbers are CL 0095556 and CE 0028208. At all times relevant to this proceeding, Mr. Conley was the owner of a cosmetology salon known as Terry's for Men's/Women's Hair (hereinafter referred to as "Terry's"). Terry's is located at 272 Palm Coast Parkway, Palm Coast, Florida 32026. On December 3, 1987, an employee of the Petitioner inspected Terry's. More than one of the drawers where employees of Terry's stored sanitized brushes and combs contained hair, coins, cards and medicine. Mr. Conley admitted that there may have been coins in the drawers and a little hair on brushes. Two additional alleged violations were cited as a result of the December 3, 1987, inspection. These alleged violations were corrected as of the date of the next inspection of Terry's by the Petitioner. On September 21, 1988, the same employee of the Petitioner that inspected Terry's on December 3, 1987, inspected Terry's again. During this inspection the inspector determined that the drawers where sanitized brushes and combs were stored were in a condition similar to their condition on December 3, 1987. Additionally, the following additional conditions were discovered during the September 21, 1988, inspection: Hair rollers, and the trays where hair rollers were kept, contained an excessive amount of hair and dirt; The Petitioner's sanitation rules were not displayed for public viewing in a conspicuous place; and More than one of the five sanitizer jars for combs were not filled sufficiently-to cover all of the teeth of the combs. Mr. Conley admitted that the jars are refilled "every day or two." The inspector also cited Terry's because one of the persons working at the shop had allegedly used clippers and scissors without sanitizing them. This alleged violation was not supported by the weight of the evidence. Mr. Conley has been operating Terry's for eleven years. The cited violations of December 3, 1987, and September 21, 1988, are the first violations cited against Mr. Conley or Terry's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be found to have violated Rules 21F-20.002 and 21F-20.004, Florida Administrative Code, in violation of Section 477.029(1)(i), Florida Statutes. It is further RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be required to pay an administrative fine of $150.00. DONE and ENTERED this 10th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of April, 1989. COPIES FURNISHED: Charles Tunnicliff Senior Attorney Tobi C. Pam Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Terry John Conley d/b/a Terry's for Men's/Women's Hair 272 Palm Coast Parkway Palm Coast, Florida 32307 Myrtle Aase Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based on the Findings of Fact and Conclusions of Law above, the Hearing Officer would recommend that the Board revoke the Respondent's license, suspending said penalty upon continued voluntary surrender of the Respondent's license for two years. At the end of said period, the Hearing Officer recommends that the Board set aside the revocation permanently upon the Respondent's satisfactorily demonstrating that she is fully rehabilitated. This will permit the Board to observe the Respondent's conduct for the remainder of her court supervised probation and an additional year of observation of the Respondent in an unsupervised environment. DONE and ORDERED this 7th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 James Freeland, Esquire 26 Wall Street Orlando, Florida 32801 Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on an alleged disability.
Findings Of Fact Respondent is a Carnegie I residential and coeducational university of approximately 40,000 students and over 13,000 full and part-time faculty and staff located in Tallahassee, Florida. The Office of Financial Aid (OFA) is responsible for the overall administration of student financial aid, including federal, state, and institutional financial aid. Of the approximate 40,000 students, 25,000 on average receive some form of financial aid in the amount of approximately $300 million dollars per year. OFA hired Petitioner on August 7, 1990, as a secretary. Thereafter, Petitioner worked for OFA for almost 18 years. During her 18 years of employment, Petitioner resigned from OFA on three occasions. She resigned in 1996 and again in 2006, only to be rehired by the same OFA Director each time. Petitioner submitted her third resignation and notice of retirement on September 19, 2008, effective September 30, 2008. With one exception, Petitioner did not make Respondent aware of any complaints or allegations of unfair treatment prior to her ultimate retirement from OFA. She never complained to anyone that she was being stalked, monitored, or overworked more than her co-workers. She did complain on one occasion that Joann Clark, OFA's Assistant Director, was walking by her office/work station and knocking on the wall/desk/counter. All new employees receive Respondent's policies and procedures relative to retirement and employee benefits eligibility. The policies and procedures include sections on the Americans with Disability Act (ADA), Family Medical Leave Act (FMLA) and Workers' Compensation (WC). On July 13, 2005, Petitioner had surgery for carpel tunnel of the wrist. Petitioner did not inform her immediate supervisor of the scheduled surgery until July 12, 2005, even though Petitioner's doctor scheduled the surgery on June 13, 2005. On July 12, 2005, Petitioner's supervisor was Lassandra Alexander. Ms. Alexander provided Petitioner with copies of, ADA, FMLA, and WC forms and reviewed them with her as soon as Ms. Alexander became aware of the surgery scheduled for the next day. Petitioner told Ms. Alexander that she was not going to worry about applying for an accommodation under the ADA, for leave under FMLA, or WC benefits. Petitioner failed to timely file for WC in July 2005. She was not eligible to receive Workers' Compensation benefits because she did not comply with the proper protocol and procedures. Petitioner returned to work on August 29, 2005, with a doctor's statement recommending her for "light duty." On September 23, 2005, Petitioner presented a doctor's statement recommending her to work half time, four days a week. Respondent complied with the doctor's recommendations. Respondent divided Petitioner's work among other co-workers and also allowed Petitioner to take breaks as needed. On October 26, 2005, Petitioner presented a doctor's statement, allowing her to return to work full time. After October 26, 2005, Petitioner never submitted any further medical documentation to indicate that she had continuing work restrictions. After October 26, 2005, Petitioner did not formally request an accommodation or furnish medical documentation indicating a need for an accommodation. Even so, Respondent continued to provide Petitioner with support and assistance as requested. On July 25, 2008, Petitioner signed a letter confirming her appointment to a full-time position. That same day, Petitioner signed a Memorandum of Understanding that advised her about the FMLA, Respondent's Sexual Harassment and Non-discrimination Policies, and Respondent's Workers' Compensation Program Guidelines. Petitioner's testimony that she never received copies of these documents and that she was unaware of benefits and eligibility forms at any time during her several hires by OFA is not persuasive. There is no competent evidence that Petitioner was substantially limited in performing the essential functions of her job or that she suffered from a disability as defined by the ADA after October 2005. Additionally, Petitioner never informed her supervisors of an alleged on-going disability and never provided medical certification to substantiate her current allegations. Therefore, it is clear that Petitioner's co- workers and supervisors did not regard her as having an impairment. Petitioner's work evaluations for her entire 18-year employment with OFS were above standards. Petitioner's supervisors valued her work ethic and production in the office. The greater weight of the evidence indicates that Respondent's staff did not intentionally discriminate against Petitioner. They did not harass Petitioner by any means, including stalking her, excessively monitoring her work habits, isolating her to her office, giving her more work than her co- workers, tampering with her office computer, refusing to investigate her allegations of vandalism to her car in the parking lot, and refusing to give her a new office chair and computer mouse that she requested on an office "wish list." Petitioner's testimony to the contrary is not credible. At some point in time, Petitioner complained to Willie Wideman, OFA's Associate Director, that Assistant Director Joanne Clark was knocking on the wall to her office/workspace/counter. Mr. Wideman spoke to Ms. Clark, determining there was no validity to Petitioner's allegations. Petitioner also complained to her friend and co- worker, Joann Smith, that she was irritated because people were knocking on her counter. Ms. Smith admitted she had knocked on Petitioner's counter as a means of friendly communication, a way to say hello in passing. Later, Ms. Smith became aware of the "no knocking" sign on Petitioner's desk. Petitioner's two letters of resignation and her notice of retirement clearly demonstrate that she did not perceive any discrimination, harassment or hostile work environment from her fellow employees or supervisors. All of Petitioner's colleagues were shocked when they learned about Petitioner's complaint and read the allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 22nd day of December, 2009. COPIES FURNISHED: Cheryl Mask-Brockman 536 West 5th Avenue Tallahassee, Florida 32303 Brian F. McGrail, Esquire Florida State University 424 Wescott Building 222 South Copeland Street Tallahassee, Florida 32306 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
