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 Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all foods were not properly stored and protected from all sources of contamination, in violation of Rule 7C- 4.01(2)(a)(k)(m), F.A.C. Whether or not on on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all floors were not kept clean, in violation of Rule 7C-4.01(6)(a)(b), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the walk-in cooler was not kept clean, in violation of Rule 7C-4.01(4)(a)(1), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the dishwasher was not kept clean, in violation of Rule 7C-4.01(4)(f), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the premises were not free of roaches, in violation of 7C-4.01(5)(h), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all garbage cans were not kept clean in violation of Rule 7C-4.01(5)(g), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the kitchen was not kept clean in violation of Rule 7C-4.01(6)(f), F.A.C.
Findings Of Fact This cause comes on for consideration based upon the Petitioner's notice to show cause issued to the Respondent, and the Respondent's request for formal hearing on the allegations set forth in the notice to shown cause. Those allegations will be more completely discussed in the latter portions of this recommended order. The Respondent, Flanigans, Inc., does business under the name Flanigans, at a licensed premises located at 303 East Jefferson Street, Tallahassee, Florida. The Respondent is licensed by Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The license number is number 47-52R. That license was in effect during the pendency of the matters which are at issue. On June 20, 1977 Elliott Duggar, Inspector I, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, went to the licensed premises to inspect the conditions found in the restaurant. This inspection is conducted in accordance with the terms of the license held by the Respondent under the permission of the Petitioner. This inspection was being conducted in accordance with the requirement that periodic inspections be made and also pursuant to a complaint made by a patron in the restaurant. The Complaint concerns the patron's discovery of some form of bug located in a baked potato which he had been served. (The last periodic inspection had been held in February, 1977.) The current inspection took place around 10:00 o'clock A.M. While inspecting in the food preparation area, Mr. Duggar observed that one food container containing slaw, was not covered. By this it meant that the saran wrap that was on the top of the container had fallen into the slaw. In addition an employee was dipping slaw from this container into other containers by using a bowl, which did not have a handle and which allowed the employee's hands to touch the slaw. Duggar also observed bread in the middle of the room which was not wrapped. There were bread crumbs on the floor in the food preparation area. During the course of the check Mr. Duggar saw a residue of grease on the floor and some grease underneath the kitchen equipment. Specifically, there was grease behind and under the stove. The walls were found to be dirty. There were signs of roaches, which the witness Duggar described as "leavings". These were found in one of the store rooms found in the kitchen area. Duggar also saw a roach in the kitchen area. The area of the dishwasher was dirty and there were a number of pots and pans and dishware stacked on the dishwasher, which were dirty. The inside of the dishwasher was dirty. The garbage cans in the premises were dirty. The garbage can in the area of the dishwasher had a foul odor and trash in the bottom of the can. As a result of his inspection, Dugger rendered a written report which is Respondent's Exhibit #2, admitted into evidence. Following the report the restaurant was cited for violations, and these violations constitute the basis of the case. In explaining the condition of the licensed premises on the date of inspection, the licensee established that it had lost its dishwasher the night before, when the dishwashing employee walked off the job. In addition the all day waiter that was assigned for the June 19, 1977 shift was not available, which further contributed to the problems in the kitchen area. On June 24, 1977, Mr. Duggar returned to the licensed premises for a follow up inspection and noted that the licensee had compliance with his request to clean, with the exception of the area underneath the equipment, back of the cooking equipment specifically, which was still dirty. A copy of the call back inspection report may be found as Respondent's Exhibit #1, admitted into evidence. The initial count in the notice to show cause brought against the Respondent contain alleged violations of Rule 7C-4.01(2)(a)(k)(m), F.A.C. Those various provisions state as follows: "(2) Food Protection Food while being stored, prepared, displayed, served or sold at a food service establishment shall be protected from dust, flies, rodents, and other vermin, toxic materials, unclean equipment and utensils, unnecessary handling, coughs and sneezes, flooding by sewage, overhead leakage and all other sources of contamination. (k) Food shall be displayed and served in such manner as to minimize contamination. Manual contact with unpackaged foods shall be avoided. Clean tongs, scoops, forks, spoons, spatulas or other suitable implements shall be used by employees. Similar implements shall be provided for self-service by customers. Sugar, if provided, shall be in closed dispensers or in individual packages. (m) Unwrapped foods which are displayed or otherwise placed on counters or serving lines at cafeterias, smorgasbords, buffets or similar type operations and all unwrapped foods on tables, racks, carts, counters and shelves at any food service establishment shall be protected against contamination from customers and other sources. Such protection shall be provided by glass or other approved enclosures or by the installation of easily cleanable sneeze-guards or other effective counter protector devices designed to intercept a direct line between the mouth of the customer and the food. Self-service openings on counter guards shall be so designed and arranged as to protect food from manual contact by customers. Special smorgasbords and buffets for particular groups, organizations and associations and not a part of a regular or permanent operation for the general public, shall be excepted from the requirement of enclosures, sneeze-guards or counter protector devices as herein required." In reviewing the language of those several subsections, it is established through the facts that the uncovered slaw, and the way that the slaw was being dispensed, was in violation of those cited subsections. The unwrapped bread that was discovered would also constitute violations of those same subsections. The second count in the notice to show cause allege violations of Rule 7C-4.01(6)(a)(b), F.A.C., these sections read as follows: "(6) Other Facilities and Operations: Floors - The Floor surface in kitchens and all other rooms and areas in which food is stored or prepared, utensils are washed or stored, walk-in refrigerators, garbage, and rubbish rooms and toilet, dressing and locker rooms shall be of smooth, non-absorbent material. Floor drains shall be provided in accordance with provisions of this code in all rooms where floors are subjected to flush or flood type cleaning or where normal operations release or discharge water or other liquid waste onto the floor such floors shall be graded to effectively drain. Mats or duckboards, if used, shall be so constructed as to facilitate being easily cleaned and shall be kept clean. The floor surfaces in all interior and exterior areas where food is served shall be of such construction and finish as to be easily cleanable. Carpeting, if used on floors of interior dining rooms, shall be kept in good repair and shall be cleaned by dustless methods. All floors shall be kept clean and in good repair. Sawdust, wood shavings, peanut hulls and similar materials shall not be permitted on the floors of a food service establishment. Walls and ceiling - All walls and ceilings including doors, windows, skylights, screens and similar closures shall be kept clean and in good repair. The walls of all food preparation, utensil-washing and hand-washing rooms or areas shall have light-colored, smooth, easily cleanable surfaces and shall be washable up to the highest level reached by splash or spray. Studs, joist and rafters shall not be left exposed in food preparation or washing areas or toilet rooms. If exposed in other rooms or areas, they shall be suitably finished and all surfaces shall be kept clean and in good repair. Sheet metal, plastic or other covering materials, if used, shall be closed at all joints and shall be sealed to the wall or ceiling. Acoustical materials may be used on ceilings, provided ventilation is adequate to minimize grease and moisture adsorption. Light fixtures, fans, hoods, and other equipment and materials attached to walls or ceilings shall be kept clean." The testimony in this case establishes that the floors and walls and ceiling were not kept clean. The third count pertained to an alleged violation of the Rule 7C- 4.10(4)(a)(1), F.A.C., in particular the allegation was that the walk-in cooler was not kept clean. The testimony did not establish a violation of that nature. Count four of the notice to show cause pertained to the dishwasher and an allegation that the dishwasher was not kept clean. This was asserted as a violation of Rule 7C-4.01(4)(f), F.A.C., which states: "(4) Food Equipment and Utensils. (f) Cleanliness of equipment and utensils. 1. All multi-use eating and drinking utensils shall be thoroughly cleaned and sanitized after each useage. All kitchenware and food contact surfaces of equipment used in the preparation or serving of food or drink and all multi-use food storage utensils, exclusive of cooking surfaces of equipment shall be cleaned at least once a day. All multi-use utensils and food contact surfaces of equipment used in the preparation or storage of potentially hazardous food shall be thoroughly cleaned and sanitized prior to each such use. Where equipment and multi-use utensils are used for preparation of potentially hazardous foods on a continuous or production line basis, food-contact surfaces of such equipment and utensils shall be cleaned and sanitized at scheduled intervals throughout the day as approved by the health authority. Non-food contact surfaces of equipment shall be cleaned at such intervals as is necessary to keep them free of dust, dirt, food particles and otherwise in a clean and sanitary condition. After cleaning and until use, all food-contact surfaces of equipment and multi-use utensils shall be so stored and handled as to be protected from manual contact, splash, dust, dirt, insects and other contaminants. All cracked and broken dishes, enamelware and utensils shall be disposed of and not be placed in any form of service. work table tops must be metal or hardwood with no cracks, and cutting boards for slicing prepared foods other than meat block shall be used. No papers or oil cloth be used on tables and shelves in kitchens. All stoves, ranges, ovens, dish racks, windows, meat blocks, meat slicers, choppers, grinders, tenderizers, saws, can openers, knife racks, coffee making equipment, tables, shelves, floors and other equipment must be properly constructed, kept clean, sanitary, in good repair, and free from accumulated grease and dirt." The facts established that the dishwasher was not kept clean. Count five of the notice to show cause alleged that the premises were not free of roaches, and therefore violated Rule 7C-4.01(5)(h), F.A.C. The testimony established that there were roaches in the licensed premises. The cited section of the Rule states: "(5) Sanitary facilities and controls: (h) Vermin control - Effective control measures shall be taken to protect against the entrance into the food establishment, and the breeding or presence on the premises of rodents, flies, roaches and other vermin. All buildings shall be effectively rat- proofed, freed of rats and maintained in a rat-proof and rat free condition. All openings to the outer air shall be effectively protected against the entrance of flies and other flying insects by self-closing doors which open outward, closed windows, screening, controlled air currents or other effective means. Screening material, when required shall be not less than sixteen (16) mesh to the inch or equivalent and screens for windows, doors, skylights, transoms and other openings to the outer air shall be tight-fitting and free of breaks." In reviewing the facts, it has not been established that the licensed premises failed to take effective control measures to protect against the entrance of roaches. The sixth count of the notice to show cause complains of the Respondent's failure to keep the garbage cans clean. The section on this allegation is Rule 7C-4.01(5)(g), F.A.C. which contains the following language: "(5) Sanitary Facilities and controls: (g) Garbage and rubbish disposal - All garbage and rubbish containing food wastes shall, prior to disposal, be kept in leak-proof, non-absorbent con- tainers which shall be kept covered with tight- fitting lids; provided that such containers need not be covered when stored in a special vermin- proofed room or in a closed food waste refrigerator or during the period of time that frequency of use makes the lid covering impractical. All other rubbish shall be stored in an approved manner. The rooms, enclosures, areas and containers used shall be adequate for the storage of all food wastes and rubbish which accumulates between periods of removal. Adequate cleaning facilities shall be provided and each container, room or area shall be thoroughly cleaned after the emptying or removal of garbage and rubbish. Waste water from such cleaning operations shall be dispensed of as sewage. Food-waste grinders, if used, shall be suitably constructed. All garbage and rubbish shall be removed from the food establishment premises with sufficient frequency to prevent nuisance." The testimony concerning the status of the three garbage cans in the licensed premises, indicates that the condition of the garbage cans was in violation of this subsection. Finally, there is an overall allegation in count seven, which states that the kitchen was not kept clean, claiming a violation of Rule 7C-4.01(6)(f), F.A.C., this section states: "(6) Other Facilities and Operations: (f) Housekeeping - All parts of the establishment and its premises shall be kept neat, clean and free of litter and rubbish. Cleaning operations shall be conducted in such a manner as to minimize contamina- tion of food and food-contact surfaces. Vacuum cleaning, wet cleaning, or other dustless methods shall be used for cleaning floors, walls and ceilings; provided, that dust arresting sweeping compounds and push-brooms may be employed for floors. All such cleaning, except emergency floor cleaning, shall be done during periods when the least amount of food is exposed, such as after closing and between meals. Soiled cloths, linens, aprons, coats and other uniform apparel shall be kept in suitable containers until removed for laundering." The facts as established indicate a violation of this subsection. As an aspect of this hearing, the parties have agreed that the undersigned may take official notice of the Florida Administrative Code and its various provisions, to include the rules which were the basis of the notice to show cause. A copy of the written stipulation is made a part of the record herein.
Recommendation Upon consideration of the facts in this cause and the Petitioner's statement that the Respondent had been offered a $50.00 fine to settle the alleged violations, it is recommended that payment of a $50.00 fine be accepted as a disposition of this case. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Gentry, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Russell M. McGregor 303 East Jefferson Street Tallahassee, Florida 32304
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 Respondent's license number 23-3483H should be suspended or revoked, or a civil penalty assessed for alleged violation of Section 509.221(3)(7)(8), F.S. Rule 7C-1.03(1), (5), and (7) , F.A.C., as set forth in Notice to Show Cause, dated June 5, 1978. Respondent did not appear at the hearing nor did any representative in his behalf. He had received an order of the Hearing Officer continuing the hearing from November 22, 1978 to December 5, 1978 which was issued on November 17, 1978. In a post-hearing letter to the Hearing Officer, dated December 6, 1978, Respondent stated that he knew the hearing was set for December 5 but misfiled the date of hearing, and requested another hearing. He was advised by the Hearing Officer, by letter of December 7, 1978, that such a rehearing would be precluded pursuant to Rule 28-5.25(9), Florida Administrative Code. In view of the fact that Respondent did not appear at the hearing after being properly notified, the hearing was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), Florida Administrative Code.
Findings Of Fact Respondent holds license control number 23-3483H issued by Petitioner pursuant to Chapter 509, Florida Statutes, for apartments located at 1040 Lenox Avenue, Miami Beach, Florida. Respondent has been so licensed during the year 1978. (Testimony of Gelber, Exhibit 2) On May 9, 1978, Sidney Gelber, Petitioner's sanitation and maintenance inspector, visited the premises of Respondent's apartments on a routine inspection. The apartments consisted of two separate buildings, one behind the other, each containing four units. Gelber observed broker tiles on the steps at the main entrance to the rear building. He found much trash and debris, including junked auto parts and glass jalousies at the rear of the grounds where the tenants utilized a laundry line and disposed of garbage. In the garbage area, cans were uncovered, dirty, and flies and bugs were observed. He saw a large open vent on the south side of the front building with no screen, and the screen of the rear door of the front building was torn. (Testimony of Gelber) A warning notice which set forth the deficiencies found as a result of the inspection was sent to Respondent which he received on May 15. The notice provided that such minor violations must be corrected by May 19, 1978. On May 23, the inspector revisited the premises and found that Respondent had not complied with the notice by correcting the deficiencies. On June 5, 1978, Petitioner sent Respondent a Notice to Show Cause why disciplinary action should not be taken against him for the cited violations. Respondent thereupon requested a hearing in the matter. (Testimony of Gelber, Exhibit 1) The inspector testified at the hearing that the broken tiles, open vents, debris, and torn screens constituted a hazardous condition. Respondent had received notice of prior similar violations on October 11, 1977, which he subsequently remedied. (Testimony of Gelber)
Recommendation That an administrative fine in the amount of $250.00 be imposed against Respondent for violation of Rule 7C-1.103(1), 7C-1.03(5), and 7C-1.03(7), Florida Administrative Code, under the authority of Section 509.261(2), Florida Statutes. DONE and ENTERED this 21st day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Jo Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Tallahassee, Florida 32304 R. C. Weit 775 NE 79th Street, Suite B Miami, Florida 33138
The Issue The issues in this action are promoted through a notice of violation and orders for corrective action filed by the Petitioner against the Respondent in which the Respondent is accused of violating various provisions of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, related to fill material allegedly found in waters of the state adjacent to property of the Respondent, without the benefit of a permit from the Petitioner which would allow the existence of that fill material in the questioned area. To remedy this condition, Petitioner seeks to have Respondent remove the material and restore the area to its natural condition. Finally, Petitioner requests reimbursement of cost incurred in the investigation of this case.
Findings Of Fact Respondent is the owner of a parcel of property located in Jacksonville, Duval County, Florida, described as Lot 8, Yvonne Park, recorded in Plat Book 21, page 97, of the public records of Duval County. The street address of that property is 6775 Yvonne Lane, Jacksonville, Florida. That property borders on Pottsburg Creek, a body of water over which Petitioner has Chapter 403, Florida Statutes, jurisdiction for regulatory purposes. Pottsburg Creek, in turn, is connected to the St. Johns River, another waterbody over which the Petitioner has similar jurisdiction. Fill material has been placed in the landward extent of Pottsburg Creek at the Respondent's property site at 6775 Yvonne Lane, Lot 8, Yvonne Park. That fill material in the landward extent is approximately 6 feet thick and is constituted of building materials, to include roofing, dirt, household trash and other assorted debris. The fill area is approximately 190 feet wide by 100 feet deep. Dominant plant species in the fill area in question include bald cypress (Taxodium distichum) and water ash (Fraxinus caroliniana). These species are set forth in the species list of Rule 17-4.02, Florida Administrative Code, and generally delineate the landward extent of the Pottsburg Creek. For its claim of jurisdiction, a more exact measurement of the landward extent of Pottsburg Creek has been established by drawing an imaginary line between two bald cypress trees on adjacent property through the filled area on the Burch property. The area waterward of the imaginary line is established as waters of the state and the area landward is outside that jurisdiction. This line is depicted on Petitioner's Exhibit No. 4, a photograph of the area in question. In particular, the imaginary line is shown in blue. This method of establishing jurisdiction was elected because in the placement of fill, the identifying species of bald cypress and water ash were removed. The fill was placed between April 26, 1974 and January 3, 1981 as established by an examination of aerial photographs (Petitioner's Exhibits No. 6 and 7) taken on those respective dates. The clearing that was done to allow the placement of fill increased and continues to increase water pollution and lower the water quality in Pottsburg Creek and the St. Johns river. Before the land was cleared, the natural vegetation absorbed and assimilated pollutants born in the runoff from the upland. Now, not only is that valuable function destroyed, the fill itself becomes a source of pollution through leaching of the materials that constitute the fill pack. Those materials degrade and cause water pollution in Pottsburg Creek. The water quality in that creek is already less than desirable, especially related to dissolved oxygen, and the introduction of organic pollutants from from the fill bank would aggravate that circumstance. In the pursuit of this action, the Petitioner has incurred cost and expenses in the amount of $71.03 related to its investigation.
Recommendation Based upon the facts found and the conclusions of law reached, it is recommended: That a Final Order be entered which finds the Respondent responsible for the pollution caused by the placement of the fill, that awards $71.03 in costs of investigation to the Petitioner, that requires the Respondent to remove all fill materials placed within the landward extent of Pottsburg Creek as determined herein, that requires the restoration of the land elevation and soil condition existing prior to the placement of fill, and that requires, during the restoration activities, that the adjacent area over which the Department of Environmental Regulation has jurisdiction not be adversely impacted. DONE AND ENTERED this 21st day of March, 1984, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1984. COPIES FURNISHED: Lacy Mahon, Jr., Esquire 350 South Adams Street Jacksonville, Florida 32202 Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 22301 David K. Thulman, Esquire 2600 Blair Stone Road Tallahassee, Florida 32201
The Issue The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.
Findings Of Fact The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because there were no jobs available that complied with the Petitioner's medical restrictions. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.
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 filed by Jerzy Josefik in this case. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jerzy Jozefik 9605 Southwest 27th Avenue Ocala, Florida 34476 Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609-1117 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner has just cause to terminate Respondent.
Findings Of Fact The City is a municipality located in Pinellas County, Florida. Alexander was hired by the City on October 7, 2002, as a Service Worker in the Sanitation Division of the Public Works Department. He was a backup sanitation driver, working on residential collection routes. Grover Smith (Smith), the City's Sanitation Supervisor, supervises 17 employees, including Alexander. He is responsible for the daily operations of the collection of solid waste by the City's Sanitation Division. Smith has worked for the City as a sanitation supervisor for five years and was employed in the City's Sanitation Department for 17 years prior to becoming a supervisor. His work experience includes driving a sanitation truck and being a crew leader in the Sanitation Division. As an employee of the City, Alexander was subject to the City's Code of Conduct, which lists different groups of offenses for which City employees may be disciplined. The City's Code of conduct lists the following offense as a Group I offense: Tardiness, as defined as reporting late for work, overextending breaks or meal periods within one year of the first occurrence. Occurrences of tardiness shall only be considered for a year in applying progressive discipline. When determining the proper discipline go back only one year from the most recent occurrence and follow the progression of discipline as indicated. (Guide for determining tardiness: three times in any thirty (30) calendar day period, or six (6) times in any ninety (90) calendar day period or a continuous pattern of tardiness. From May 12, 2003, through June 6, 2003, Alexander was tardy to work four times. On June 10, 2003, Smith issued a verbal warning to Alexander for his tardiness. During November 2003, Alexander was tardy ten times. Smith issued Alexander a written warning on November 26, 2003, for his tardiness. Alexander was warned that any further violations would result in progressive disciplinary action up to and including termination. The City's Code of Conduct provides that "[f]ailure to immediately report an accident or injury in which the employee is involved in while on the job" is a Group II offense for which a City employee may be disciplined. On December 9, 2003, Alexander struck a pine tree in a trailer park while driving a sanitation truck. Alexander did not immediately report the accident. Smith learned of the accident from another employee on December 9, 2003. Smith questioned Alexander the same day about the accident, and Alexander denied hitting the tree. The next day Smith investigated the incident and found evidence that a pine tree in the trailer park had been struck and that there were remnants of the pine tree on the bumper of the right side of the sanitation truck that Alexander had been driving. Smith again questioned Alexander, who continued to deny that he hit the tree. Only after two other employees who had been working with Alexander on the day of the accident admitted that the truck had struck the tree did Alexander admit that he had hit the pine tree. On December 16, 2003, Smith issued Alexander a written warning for failing to immediately report the accident. From February 27, 2004, through March 22, 2004, Alexander was tardy four times. Alexander received a two-day suspension for this offense, which was in accordance with the guidelines of the City's Code of Conduct which provides for a one to three-day suspension for a third Group I offense. The City's Code of Conduct provides that "[n]eglect or carelessness which results in a preventable accident" is a Group I offense for which a City employee may be disciplined. On May 20, 2004, Alexander, while driving a City sanitation truck, made a left turn and failed to swing wide enough, striking a series of mailboxes. The following day Alexander had another accident when he was backing a City sanitation truck down the street in a mobile home park and struck an awning on a mobile home. Both of these accidents occurred on the driver's side of the vehicle and could have been avoided if Alexander had been paying attention. The City's Code of Conduct provides that a City employee may be discharged for a Group IV offense, which includes the following: Chronic offender of the Code of Conduct. (Guide: four (4) violations of any departmental or City rule or regulation in an eighteen (18) month period which results in a Verbal Warning or other disciplinary action (effective upon adoption of the revised Personnel Rules). Smith recommended to Kurt Peters (Peters), the Director of Public Works for the City, that Alexander be suspended for five days. Peters consulted the City's Personnel Director, Bill Cropsey (Cropsey). Cropsey determined that Alexander was a chronic offender and could be discharged. On June 9, 2004, Cropsey sent Alexander a letter advising him that he was in violation of the City's Code of Conduct as a chronic offender of the Code of Conduct and that a pre-disciplinary hearing was scheduled for June 14, 2004. Alexander was placed on administrative leave with pay, pending the pre-disciplinary hearing. The pre-disciplinary hearing was held on June 14, 2004, at which time Cropsey and Peters determined that Alexander should be discharged as a chronic offender. By letter dated June 14, 2004, Cropsey advised Alexander that he was terminated from his employment with the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Christopher Alexander's employment with the City. DONE AND ENTERED this 5th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 5th day of November, 2004. COPIES FURNISHED: Christopher T. Alexander 6324 150th Avenue, North Clearwater, Florida 33760 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman, Heyman & Jardine, P.A. Post Office Box 15309 Clearwater, Florida 33766 Jeff Bronson, Chairman Personnel Review Board City of Safety Harbor 750 Main Street Safety Harbor, Florida 34695
