The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner. Respondent's last known address is 2838 South U.S. Highway 1, Fort Pierce, Florida. Case No. 02-2160 Petitioner's inspector inspected Respondent on July 13, 2001. Several deficiencies were noted by the inspector. One deficiency of critical concern was that Respondent's employees had failed to complete their food service training. Because of this critical deficiency, Respondent was given a 30-day warning to have the training completed. Over 30 days later, on August 26, 2001, Petitioner's inspector returned for a re-inspection. Three deficiencies were not corrected and remained: Respondent had failed to complete the food service training for its employees; Respondent failed to provide hand towels and soap at the hand wash sink; and Respondent failed to have a light shield at the grill cook area. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances. As to the food service training for employees, the books for the training had been ordered but had not been received at the time of the re-inspection. Additionally, Respondent is closed for the first two weeks in August of each year for vacation and the employees are away. Moreover, the employees completed their training on September 15, 2001. Respondent requested a re-inspection, which was performed by one of Petitioner's supervisors. Respondent had complied with all requirements and no deficiencies were found. Case No. 02-2161 Petitioner's same inspector inspected Respondent on January 31, 2002. Several deficiencies, including critical deficiencies, were noted by the inspector. Seven days later, on February 7, 2002, the inspector returned for a re-inspection due to the critical deficiencies being noted. Nine deficiencies were not corrected and remained: the slicer blade area had an accumulation of old food debris; the shelf in the dry food storage area was rusted; extension cords were being used in the kitchen near the slicer; the rear door was not sealed properly at the bottom and side of the door; there was no backflow prevention device on the spigot below the dish machine; unapproved containers were being reused at the dishwash area; the absence of test strips to test the concentration of the sanitized solution; the dish machine was not sanitizing utensils; and the plate temperature was below 160 degrees. The critical deficiencies were the dish machine was not sanitizing utensils and the plate temperature was below 160 degrees. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances. As to the critical deficiency of the dish machine not sanitizing utensils, Respondent was unable to get the dish machine repaired in one week. As to the food slicer having an accumulation of old food debris, Respondent's employees are instructed to clean the slicer at the end of each shift. However, at the time of the initial inspection on January 31, 2002, and the re-inspection on February 7, 2002, the slicer contained an accumulation of old food debris. As to the shelf in the dry food storage area being rusted, Respondent was unable to get the rusted area painted in one week. Respondent continued to operate between the inspections and re-inspections performed in 2001 and 2002. For 25 years, Respondent's owner has been in the restaurant business in Saint Lucie County (three years as a manager and 22 years as an owner) without an administrative fine. Further, Respondent has no history of disciplinary action being taken against it by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Out of Bounds Steak N Grill committed the violations in Case Nos. 02-2160 and 02-2161. Imposing an administrative fine of $500.00 payable within 45 days of the filing of the final order. Requiring the owner of Out of Bounds Steak N Grill, Mr. Henry L. Brandenburg, to attend a Hospitality Education Program class within 60 days of the filing of the final order and to provide proof of such attendance to the Division of Hotels and Restaurants. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of October, 2002. COPIES FURNISHED: Henry Lance Brandenburg Out of Bounds Steak N Grill 2838 South U.S. Highway 1 Fort Pierce, Florida 34982 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Robert McQueen, Respondent in Case 85-3481T owns in fee simple land known as the McQueen Commercial Park adjacent to the intersection of Jones Loop Road and I-75 in Charlotte County, Florida. I-75 is part of the Federal Highway System. North Lake Foods, Respondent in Cases 85-1775T and 85-1776T, is the lessee of certain lands located within said commercial park where the sign is located. The McQueen Commercial Park consists of approximately twenty acres of contiguous land, zoned commercial intensive, presently under development. The project is not complete, but roads, water, sewage, and drainage have been installed. Respondent received a sign permit from Charlotte County for the construction of a Class A sign (on-premise sign). The sign carries only the name of the establishment it advertises, viz, "Waffle House", and its cost to construct was approximately $30,000.00. The base structure of this sign is owned by McQueen and the face of the sign is owned by North Lake Foods. The building housing the restaurant is also owned by McQueen. Although McQueen receives no direct rental income from this sign, under the terms of the lease which authorizes the tenant to erect signs complying with all laws, McQueen receives a percentage of the sales from the restaurant. This sign is within 660 feet of I-75 and is visible from that interstate. In fact the sole purpose of the sign is to alert the traveling public on I-75 of the presence of a Waffle House Restaurant at that location. The sign is located outside of any incorporated city limits and is within the interchange of I-75 and Jones Loop Road as defined in Rule 14-10.06(1)(b)1b., Florida Administrative Code. The sign is separated from the restaurant by a public access road and is located in a large fenced area used as a pasture. McQueen testified the area in which the sign is located was retained as a grazing area so as to comply with the Florida Greenbelt Law and have the property taxed at the agriculture rate. No activity associated with the restaurant is conducted on the parcel of land on which this sign is located.
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER 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 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
The Issue Whether Respondent discriminated against Petitioner because of his race.
Findings Of Fact Respondent, Waffle House, Inc., owns and operates a Waffle House unit located at 2380 E. Brickyard Road, Midway, Gadsden County, Florida (Midway Waffle House). The Midway Waffle House offers food an beverages for sale to the public and is a "public food service establishment" within the meaning of Florida Statutes. Petitioner, his wife, Toyka Timmons and her cousin, Kanton Enzor, are African-American. Petitioner and his wife live close to St. Petersburg, Florida. Mr. Enzor lives in Gadsden County, Florida. Mr. Timmons is a school teacher in St. Petersburg, Florida. He teaches Health and Physical Education. He and his wife came to Tallahassee around February 5, 2005. On that day Mr. Timmons, his wife and Mr. Enzor visited Mr. Timmons mother- in-law's home. The group was at the mother-in-law's home most of the day. Around 4:00 p.m., or 5:00 p.m., Mr. Timmons consumed two beers. Because he was not close to a trash can and did not want to throw the beer caps on the ground, Mr. Timmons put both beer caps into the pocket of the jacket he had on. Other than these two beers, neither Mr. or Mrs. Timmons consumed any other alcohol. Later in the evening at about 7:00 p.m., the Timmons and Mr. Enzor went to Mrs. Timmons' brother's home on Ocala Street, in Tallahassee, Florida. Over the next several hours the group watched a few movies and reminisced about family memories. Mrs. Timmons had been upset all day and had been crying over the recent death of her grandmother and the serious illness of her grandfather. While at her brother's house she continued to be emotionally distraught and was crying, making her eyes red and swollen. On February 6, 2005, at about 1:00 a.m., Petitioner, his wife and Mr. Enzor decided to get something to eat and take Mr. Enzor home. Everyone decided to go to the Midway Waffle House since it was on the way to Mr. Enzor's home in Gadsden County. Mrs. Timmons was dressed in a head scarf, sweat suit like jacket, a t-shirt and some jeans. Mr. Timmons was dressed in a sweat suit jacket, t-shirt and jeans. Neither was dressed for going out to a club. The group got into the Timmons' car. Mr. Enzor drove so that Mr. Timmons could sit in the back seat of the car with his wife in order to console her. She was again crying. When the group arrived at the Waffle House a large crowd was both inside and outside of the restaurant. The people gathered outside of the Waffle House were playing music and not eating. The crowd both inside and outside the restaurant was predominantly black and appeared to have come from the Ten- Ninety Club, a nightclub located close to the Midway Waffle House. Petitioner testified that there were a lot of drunk people coming from the nightclub. The Ten-Ninety club is patronized predominantly by African-Americans. Apparently, it is not unusual for the Waffle House restaurant and parking lot to be extremely crowded after the club closes. On February 6, 2005, the crowd in the parking lot was estimated to be in the hundreds and the restaurant was full. As the Timmons' group drove up to the Waffle House, Mr. Enzor thought that it was going to be a while before they would be able to get something to eat. Mrs. Timmons saw a Caucasian couple walk into the restaurant. Additionally, as Petitioner's car pulled into the Midway Waffle House parking lot, Gadsden County Sheriff's Officer, Deputy Stach McIntyre, pulled into the parking lot to respond to a public disturbance call from the Midway Waffle House staff. The Timmons' group and the Deputy walked up to the restaurant at the same time. The Deputy opened the door for Petitioner, Mrs. Timmons, and Mr. Enzor. Shortly, after the Deputy arrived at the restaurant, the majority of those not eating left. The remaining patrons consisted of two-to-three Caucasians, including the couple who had entered earlier, with the remainder African-American. The Midway Waffle House consists of several booths and a dining counter. All the booths were full with groups. The Timmons group sat at the counter along with the Caucasian couple who had entered before them. The Caucasian couple who had walked in before the Timmons' group had been given glasses of water. The evidence did not show whether the couple desired to order any food or, if they did, whether their order was taken. Once inside the Waffle House, Mr. Timmons, his wife and Mr. Enzor quietly waited to be served. At the time, there were three Waffle House employees working in the restaurant. One waitress was African-American. The grill cook was Caucasian, and another waitress, Elizabeth Watson, was "a woman of color," or mixed descent who "could have been" African-American. Ms. Watson was the waitress for the Timmons' group. Ms. Watson no longer works for Waffle House and has moved to New York. She did not testify at the hearing. As the Timmons' group waited to be served, Ms. Watson walked back and forth in front of them several times and never addressed Mr. Timmons, his wife or Mr. Enzor. Other African- American patrons of the restaurant were being served and Mr. Timmons recalled watching Ms. Watson walk over to a table of six African-American customers. He also recalled that some of the African-American customers had drinks. Mr. Timmons raised his finger and said, "Excuse me" several times. The waitress ignored them and kept walking back and forth. After about 20 or 25 minutes passed Mr. Timmons asked the waitress if they would be served. Finally the waitress stopped and told them there were some 30 to 35 orders in front of them and that they would not be served anytime soon and needed to go somewhere else to eat. Mrs. Timmons asked if they could get a drink, the waitress said, "No, you might as well go somewhere else. You're not going to be served here today.” Mrs. Timmons recalls a party of four or five African-American customers in a booth near the counter and describes, "I just remember their food coming out to them, and I remember thinking, now, why do they have their food and I'm not going to be served?" After the waitress tried to explain that the cook "couldn't prepare any more meals at the current time." Mrs. Timmons became angry with Ms. Watson, raised her voice and stated, "You mother heifer, you mean to say you're not going to serve us here? That's not fair. We haven't done anything. We've been sitting here for about 40 minutes and you're not going to serve us." Mr. Enzor admits that it was "possible" Mrs. Timmons used profanity with Ms. Watson. At this point, Mr. Timmons was relatively quiet and Mrs. Timmons asked loudly why they weren’t going to be served. Both asked to speak with the manager. The waitress pointed to a 1-800 complaint number posted on the wall. Mr. Timmons demanded to speak with a manager, not understanding that the manager was not on the premises. The discussion grew heated and words were exchanged. The disturbance could be heard over the background noise of the restaurant, which was relatively loud. At this point, the grill cook noticed Mr. and Mrs. Timmons. He "heard quite a few expletives used," and recalls "the gentleman was using language, and then the lady then actually jumped into--got into the situation." The cook also heard the server tell Mr. and Mrs. Timmons that she refused to serve them because of their "language and their attitude." At about the same time, Deputy McIntyre noticed the disturbance. He came over and sat down in an empty chair next to Mr. Timmons and asked "what the problem was." Mr. Timmons said the waitress refused to take their order. The deputy asked Ms. Watson "why she wasn't taking the order." Ms. Watson told him that she had been called a "mother F'er." Waffle House policy provides that anyone who is disruptive or uses profanity can be refused service in the restaurant at any time, that a server has the right to ask such a customer to leave, and that if the customer does not leave, the server can contact the police and have the customer removed. Customers at the Midway Waffle House have been denied service for being drunk and disorderly, for using foul language, and for fighting. Deputy McIntyre asked the waitress what she wanted to do. She said she wanted them to leave. At the hearing, Petitioner admitted that the waitress "probably wanted us to leave because my wife probably said some words to her, but I was never rude to her. I was very polite to her asking for service, and never received it." Both the Timmons and the waitress were agitated. Mr. Timmons asked Deputy McIntyre why he had to leave when all they wanted was to get served. Mr. Timmons said, "She can't tell us to leave. We didn't do nothing wrong. We want something to eat." The Deputy said, "She wants you to leave," and indicated that they had to leave the Waffle House because they were trespassing. Mr. Timmons demanded to see the manager. He was again directed to the 1-800 number listed on the wall of the Waffle House. Deputy McIntyre tried to explain that there was no manager at the Waffle House and that "if you don't leave, I'm going to have to make you leave." Mr. Timmons said "Go ahead, arrest me something along those lines." Mr. Timmons responded, "If you touch me, I'll sue you and I'll have your badge." Deputy McIntyre arrested Mr. Timmons for trespassing and public intoxication and placed him in handcuffs. Mr. Timmons' asked, "Why are you arresting me? You can't arrest me for nothing. I haven't done nothing." He then told the officer, "I could have your badge for this. What is your name?" Mr. Timmons was escorted out of the Waffle House. Mrs. Timmons and Mr. Enzor followed the officer outside. Deputy McIntyre searched Mr. Timmons and found the two beer bottle caps in his jacket pocket. Mrs. Timmons, who was agitated, asked the officer why her husband was being arrested. Deputy McIntyre grew exasperated and threatened to place Mrs. Timmons under arrest if she did not remain quiet and leave. Because Mrs. Timmons did not cease asking the officer what her husband was charged with and did not leave, she too was arrested and charged with trespassing. Mr. Enzor who remained quiet outside the Waffle House was not arrested. Mr. and Mrs. Timmons were later acquitted after a trial on the criminal charges. Mr. Timmons testified that as a result of this incident he suffered a great deal and incurred both actual and future damages. Unquestionably, Mr. Timmons was mortified, embarrassed and angered over the incident at the Midway Waffle House and his subsequent arrest. However, Mr. Timmons never sought to discuss the Waffle House visit and/or his arrest with a mental health professional or counselor. He returned to work the next school day after the arrest. He testified that the incident caused his relationship with his wife and her family to take an emotional beating because they believed that he was the reason she had gotten arrested. However, there was no objective evidence to support Mr. Timmons' assertion. Mr. Timmons also testified that his future earning capacity would be impacted because of the arrest and the manner in which he was treated by Waffle House. However, at this point, such impacts are highly speculative, at best. Finally, Mr. Timmons testified that his out-of-pocket expenses related to the defense of his criminal charges totaled $12,000.00. After the incident Petitioner filed a complaint with the Waffle House. The complaint stated: "I was very dissatisfied because the waitress was rude because she was upset with other customers.” The Timmons believe that "the reason they were not being served was because there was a rowdy crowd that was inside the Waffle House and on the outside, and that they were being grouped with those people." They felt this was racial discrimination. However, no Waffle House employee told Deputy McIntyre to arrest Mr. or Mrs. Timmons. It was Deputy McIntyre's decision to arrest both Timmons. Likewise, no employee of Waffle House made any statement that indicated the Timmons' group had come from the Ten-Ninety Club. Additionally, there was no mention of race by any employee of Waffle House or by Deputy McIntyre. Finally, the evidence in this case does not show that the Timmons' treatment at the Waffle House or subsequent arrest were motivated by their race. The evidence was clear that the events of that night were caused initially by Mrs. Timmons’ behavior and added to by Mr. Timmons’ behavior and an overworked waitress. The whole incident was unfortunate with events escalating out-of-control. The events were not due to racial discrimination, and the Petition For Relief should be dismissed.
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 February 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 22nd day of February 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara Hobbs, Esquire Cummings, Hobbs & Wallace, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Tracey T. Barbaree, Esquire Sandra Kim, Esquire Ashe, Rafuse & Hill, LLP 1355 Peachtree Street, Northeast Atlanta, Georgia 30309
Findings Of Fact Having considered all testimony, evidence, and argument of counsel, the Hearing Officer finds the following: Petitioner is a corporation organized and existing under the laws of Florida with its sole place of business located at 6186 S.W. 8th Street, Miami, Florida. Petitioner operates a delicatessen and restaurant in the same building at the above location. Petitioner's restaurant prepares food to be served to paying customers who consume that food at tables provided in the restaurant for that purpose. This food is served by waiters and waitresses who prepare guest checks which separately indicate the amount of sales tax charged thereon. Petitioner's delicatessen sells unprepared food to customers who do not consume that food on the premises and for whom no eating facilities are provided. A common cash register serves the two facilities, which cash register has a separate key or the sale of delicatessen items, and a separate key for the sale of restaurant items. The restaurant and delicatessen occupy the same general space and are not separated by a wall or other physical barrier. Petitioner collects sales tax for those items sold in the restaurant portion of the business and does not collect sales tax on those items sold in the delicatessen portion of the building. Petitioner regularly maintains separate and distinct records sufficient for an allocation between restaurant sales and delicatessen sales. On March 12, 1979, Respondent issued a proposed sales and use tax delinquency assessment against Petitioner in the amount of $40,018.14. This assessment was based upon the total sales revenue generated by both of Petitioner's enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. On May 10, 1979, the Respondent issued a revised proposed sales tax delinquency assessment against Petitioner in the amount of $33,259.20. This revised assessment was based upon the total sales revenue generated by both of Petitioner's separate enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. This assessment by Respondent against Petitioner was based, at least in part, upon Rule 12A-1.11(1), Florida Administrative Code. Petitioner holds a restaurant license from the State of Florida, Division of Hotels and Restaurants. Petitioner also holds a retail sales license from Dade County for its delicatessen operation. Rule 12A-1.11, Florida Administrative Code, was adopted, pursuant to a public hearing.
The Issue The issues in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the licensing of contractors as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent has been licensed in Florida as a general contractor since November, 1970. At all times material to this proceeding, the Respondent qualified A & E Builders, Inc., and Maury Daniel Construction Company under his general contractor's license. During March, 1982, Respondent qualified Southern Bilt Kitchens & Baths, Inc. ("Southern Bilt"), under his general contractor's license. Prior to March, 1982, Petitioner had not applied to qualify Southern Bilt under his contractor's license. Angel Alvarez is now and at all material times was the owner and president of Southern Bilt. Neither Alvarez nor Southern Bilt was registered or certified as a contractor with the Construction Industry Licensing Board. Alvarez has been licensed in Dade County only as a miscellaneous carpenter. For a period of time which included the years 1980 and 1981, the Respondent received payments from Southern Bilt to obtain building permits so that Southern Bilt could engage in various construction projects. Respondent was not otherwise employed or involved with Southern Bilt, and he did not participate in the operations, management, or control of the company. Respondent would receive payments from Southern Bilt, the amount of which varied depending upon the nature of the project, in exchange for obtaining building permits. Southern Bilt did not have persons in its employ who were qualified to obtain building permits. Southern Bilt utilized Respondent's services solely for the purpose of obtaining building permits. During October, 1980, Patricia Stewart, a resident of Miami, Florida, entered into a contract with Angel Alvarez, who represented Southern Bilt. The contract was for Southern Bilt to construct an addition to Mrs. Stewart's home. Alvarez and Southern Bilt were not qualified to obtain a building permit to complete the project. The Respondent obtained a building permit for the construction as the qualifier for A & E Builders, Inc. The permit was issued on January 15, 1981. Except for obtaining the permit, neither the Respondent nor A & E Builders, Inc., was involved in the project in any manner. Difficulties arose during construction of the project. Mrs. Stewart had paid a substantial portion of the contract price. She was dissatisfied with the quality and pace of work that was being performed. She did not learn that the building permit for the addition to her home was obtained by persons other than Alvarez and Southern Bilt until after she considered the project abandoned by Southern Bilt and contacted employees of the Building and Zoning Department in Dade County.
The Issue The issues are whether Petitioner has cause to discipline Respondent, and if so, whether Respondent's employment should be terminated.
Findings Of Fact At all times material, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Washington County, Florida. Respondent began working as a food service worker for Petitioner in 1998. In February 2009, Petitioner employed Respondent as Manager of Food Services at the Chipley High/Roulhac Middle School Cafeteria (the “Cafeteria”). Respondent received good performance evaluations throughout her tenure. Petitioner never had cause to discipline Respondent. In her capacity as manager, Respondent supervised several food service workers at the Cafeteria. These included, among others: Becky Brock, cashier and cook; Florence Harmon, cook; Louise Pettis, cook; and Evelyn Harmon, cook. Respondent was the only manager at the Cafeteria. Petitioner has a contract with an outside vender, Chartwell Food Service Management Company (Chartwell), to provide management oversight for food service operations at Petitioner's school cafeterias. In February of 2009, Chartwell’s on-site manager for the District was Jim Boylen. Every five years, the Florida Department of Education (DOE) conducts a Coordinated Review Effort (CRE) Audit of selected school cafeterias. When Bill Lee became Petitioner's Director of Food Services in October 2008, he learned that there would be a CRE Audit in February of 2009. Mr. Lee knew that DOE would audit two schools in the District. He also knew DOE would not disclose the identity of the schools until February 2, 2009. The CRE Audit is a very important audit. It is designed to assure the integrity of the federally-funded child nutrition programs operated by school districts. The CRE Audit can affect the District’s entire national school lunch operations. As the February 2, 2009, date approached, Mr. Boylen and Mr. Lee were eager to learn which two schools DOE intended to audit. It was Mr. Boylen’s responsibility to make sure that the specific schools were ready for the audit. Thus, Mr. Boylen asked Mr. Lee a couple of times on February 2, 2009, whether DOE had identified the schools. Mr. Lee received an email on February 2, 2009, at 4:11 p.m., that the Cafeteria was one of the two school cafeterias selected for the CRE Audit. Mr. Lee notified Mr. Boylen that same day of the Cafeteria's selection. Earlier on February 2, 2009, Mr. Boylen met with Respondent and her staff to discuss their production sheets. Mr. Boylen identified some deficiencies with the quality of the forms that the staff used. While Mr. Boylen was addressing Ms. Brock, Respondent looked directly at Ms. Brock and made a gesture with her hand while pointing at her head. Ms. Brock understood Respondent’s hand gesture to mean that Ms. Brock was stupid. Respondent's hand gesture embarrassed Ms. Brock. Later on February 2, 2009, Respondent asked Ms. Brock to give her a ride home from work. When Ms. Brock refused because her husband was sick, Respondent told Ms. Brock to "go home to [her] cry-baby husband.” On February 3, 2009, Mr. Boylen notified Respondent that DOE had selected the Cafeteria for the CRE Audit. Respondent was not happy about the selection because DOE had selected the Cafeteria for a previous audit. Respondent felt it was unfair that her lunchroom would be subjected to another audit for the 2008/2009 school term. The CRE Audit is stressful for cafeteria managers because the audit includes a live observation component. During the observation, the auditors observe cafeteria cashiers to determine whether they are properly following collection procedures. The collection process is the least controlled component of the audit. If a cashier makes a mistake during the live-observation, the mistake cannot be fixed. During the afternoon of February 3, 2009, Respondent's staff was cleaning the kitchen in preparation for the audit. When Respondent moved a rolling cart, she saw a pair of Ms. Brock’s shoes under the cart, along with a hard, heavy-duty cardboard tube. The cardboard tube was from an industrial-size roll of Saran Wrap. The cardboard edge of the tube is about a quarter of-an-inch thick, and the opening of the tube is two and one- half inches in diameter. The cardboard tube itself is about 18 inches long. Respondent grabbed the cardboard tube and approached Ms. Brock, who was putting away food. Ms. Brock did not see Respondent approach her, but she heard Respondent talking about a big inspection coming up. Ms. Brock heard Respondent say that “there needed to be some housecleaning starting with [Ms. Brock].” Respondent had the cardboard tube in her right hand. Without any warning, Respondent stopped behind Ms. Brock, drew back, and hit her hard on her hip/buttocks area with the cardboard tube. Ms. Brock had not said anything to provoke Respondent. When Respondent hit Ms. Brock, there was a loud pop. At first Ms. Brock was shocked, asking her co-workers what she had done. Then with a red face and tears coming down her face, Ms. Brock told Ms. Pettis how much it hurt. Ms. Brock’s hip/buttock area immediately began to burn, turn red, and become a whelp with the skin raised up from swelling. After Respondent hit Ms. Brock with the cardboard tube, Respondent told Ms. Brock that Respondent was going to throw Ms. Brock’s shoes in the garbage. Ms. Brock responded to Respondent, saying, “Please don’t.” Respondent then opened the door and threw Ms. Brock’s shoes out the door of the Cafeteria. Ms. Brock was very embarrassed to have been hit in front of her co-workers. Although shy and very embarrassed, Ms. Brock showed the mark to Ms. Florence Harmon, Ms. Pettis, and Ms. Evelyn Harmon. Ms. Pettis described a red streak that was as wide as the tube. Ms. Florence Harmon described a red mark and a good-sized whelp. Ms. Evelyn Harmon also saw the red mark and whelp. Ms. Brock tried to show the red mark and whelp to Respondent. However, Respondent avoided Ms. Brock and would not look at the injury. That evening, Ms. Brock looked in the mirror and saw the bruise. The following day, a bluish-green bruise was still on her hip. These were not the only times that Respondent called Ms. Brock by demeaning and derogatory names and otherwise insulted her in the work environment. Respondent had a history of mistreating Ms. Brock, including calling Ms. Brock demeaning and derogatory names at work, like “dumb-dumb,” “cry baby” and “whimp.” Ms. Brock always tried to be friends with Respondent and wanted Respondent to like her. Ms. Brock usually sat next to Respondent during lunch. Ms. Brock and Respondent would laugh and talk with the group. On one occasion after lunch, Ms. Brock and Respondent watched a DVD movie on Respondent's portable DVD player. On another occasion, Ms. Brock and Respondent met each other at Goodwill to shop. Nevertheless, Ms. Brock was fearful of Respondent. After the incident on February 3, 2009, Respondent put the cardboard tube in her office. Later that day, Respondent called Ms. Brock into her office and asked Ms. Brock why she told Ms. Florence Harmon about the incident. Respondent then threatened Ms. Brock, telling her that “if [she] did not behave that [Respondent] would give her some more of [the cardboard tube].” The following day, Respondent threatened Ms. Brock again by asking Ms. Brock if she “wanted some more of what [Respondent] had given [her] yesterday.” Ms. Brock saw the cardboard tube in Respondent’s office on both of these days. The day after the incident, Respondent also threatened to hit Ms. Florence Harmon with the cardboard tube. Respondent reached down under her desk, pulled out the cardboard tube, and told Ms. Harmon that she “was next.” Ms. Harmon believed that Respondent was not joking or playing around when she made the threat. Initially, Ms. Brock was afraid to report the incident. Ms. Brock had witnessed Respondent retaliate against other employees who had made complaints about Respondent. Ms. Brock feared that Respondent would retaliate against her if Ms. Brock reported the incident. As time passed, Respondent continued to mistreat Ms. Brock by deliberately ignoring her and avoiding her. Respondent wouldn’t talk to Ms. Brock. Ms. Brock eventually decided to report the incident. On February 9, 2009, Ms. Brock called Dr. Cook to report the incident. Dr. Cook told Ms. Brock that Ms. Brock would need to put her complaint in writing. Ms. Brock replied that she was afraid to go to the District's office to deliver her written complaint, because she feared that Respondent might find out and retaliate against her. Therefore, Dr. Cook told Ms. Brock that she could mail her complaint to Dr. Cook’s home address. Ms. Brock typed a letter to Dr. Cook, outlining the facts and circumstances. Ms. Brock mailed the letter on February 10, 2009. When Dr. Cook received Ms. Brock’s letter on February 11, 2009, she asked Deputy Superintendent Jayne Peel and Mr. Lee to investigate the matter. Dr. Cook believed that having two members of the District's staff listening to the employees and taking notes would ensure that the facts were accurately recorded. Dr. Cook believed the matter was very serious, and she wanted it investigated the same day. Thus, Ms. Peel and Mr. Lee immediately went to the Cafeteria. Mr. Lee and Ms. Peel first met with Respondent. They explained why they were there, and they asked Respondent to give her version of the incident. Respondent wrote out a statement in which she admitted that she “popped” Ms. Brock, but claimed she was just playing around and didn’t mean to hurt her. Respondent wrote in her statement that Ms. Brock was “acting like a baby” when the incident occurred. Respondent did not express any remorse over hitting Ms. Brock with the cardboard tube. Ms. Peel and Mr. Lee then interviewed four other food service employees: Ms. Brock, Ms. Florence Harmon, Ms. Pettis, and Gladys Wagner. Among other things, these employees described how Respondent hit Ms. Brock with the cardboard tube and how the injury produced a red mark and whelp. They also related that Respondent’s supervision of the Cafeteria created a hostile work environment. Ms. Peel returned to the District's office on February 11, 2009. She reported the results of the investigation to Dr. Cook. On February 13, 2009, Ms. Brock notified Dr. Cook that the cardboard tube was at the Cafeteria, if Dr. Cook needed it. Dr. Cook obtained the cardboard tube and placed it in a secure location. The atmosphere in the Cafeteria changed on a day to day basis, depending on Respondent's mood. When Respondent was in a good mood, the work environment was friendly, even playful, as the staff joked around. On those days, the staff might pop each other with a dish cloth or brush at each other's feet with brooms. When Respondent was not in a good mood, she was likely to call the staff, in addition to Ms. Brock, derogatory names. For instance, Respondent referred to another employee, Ms. Wagner, as “crippled” or "limpy” because Ms. Wagner had bad knees and walked with a limp. Respondent also told Ms. Florence Harmon, on more than one occasion during the 2008/2009 school year, that Ms. Harmon “should have died when her husband died.” Ms. Harmon’s husband died five years ago. Respondent would refer to herself at work as the “H-N- I-C,” i.e., Head N In Charge. Both before and after the incident, Respondent would reprimand employees in front of their co-workers, teachers and students, including shouting at the employees. When employees requested time off or took time off, Respondent would ignore them and not speak to them. On one occasion, Respondent threatened to reassign Ms. Brock as punishment if Ms. Brock took time off. Respondent sometimes used inappropriate punitive measures in response to employee performance issues. For instance, Respondent threatened to take Ms. Brock’s stool away and make her stand when working as a cashier as punishment for accidentally missing a charge for a slice of pizza. Respondent did take Ms. Brock’s stool away on at least one occasion. Additionally, Respondent used the Cafeteria to cater a private function, for which she earned a profit. Petitioner did not request advance permission to use the facility for personal reasons in violation of Petitioner's policy. Respondent's testimony that she was not aware of Petitioner's policy regarding the use of school property for personal reasons, after seven years as Food Service Manager, is not credible. Dr. Cook carefully considered the facts learned by Ms. Peel and Mr. Lee during their investigation. Even though the CRE Audit was scheduled for the following week, Dr. Cook decided to suspend Respondent with pay effective, February 12, 2009. Ms. Peel and Mr. Boylen met with Respondent that afternoon and advised Respondent of Dr. Cook’s decision. Ms. Peel also advised Respondent that she would have an opportunity for a pre-termination conference with Dr. Cook and that Respondent had the right to request a formal hearing on Dr. Cook’s recommendation. Petitioner subsequently gave Respondent written notice by letters dated February 13, 2009, regarding the following: Dr. Cook’s recommendation, (b) the date of Respondent's pre- termination conference with Dr. Cook; (c) the date of Petitioner's meeting on March 9, 2009; and (d) Petitioner’s right to request a formal hearing. Superintendent Cook had a pre-termination conference with Respondent on February 19, 2009. At that time, Respondent gave her version of the events directly to Dr. Cook. On February 23, 2009, Respondent provided Petitioner with a written request for a hearing. In a letter dated March 18, 2009, Petitioner notified Respondent that Petitioner would meet on March 19, 2009, to decide whether it would conduct the hearing or refer the case to the Division of Administrative Hearings. The March 18, 2009, letter also advised Respondent that Petitioner would rely on additional information relating to inappropriate comments that Respondent allegedly made to employees to support Petitioner's decision to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 16th day of July, 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 16th day of July, 2009.
