The Issue Whether Respondent violated Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Agency for Health Care Administration (Agency), is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Respondent, Golfview Nursing Home (Respondent/Golfview), operates a licensed nursing home at 3636 10th Avenue North in St. Petersburg, Florida. At all times relevant to this proceeding, the facility had fifty-seven (57) beds, but the usual occupancy was between thirty-two (32) and thirty-five (35). The Agency conducted an annual licensure survey of Golfview on April 3-5, 2001, during which the Agency surveyors evaluated the facility's compliance with state and federal regulations governing the operation of a nursing home. At the outset of the survey, on the morning of April 3, 2001, the surveyors expressed to Golfview staff concerns over the adequacy of the hot water temperature of the facility's dishwasher. One of the surveyors was concerned that the dishwasher was required to run four cycles before reaching 125 degrees, the specified temperature for operation of the type of dishwasher used at the facility. Based on the previous year's survey, Golfview staff members were aware of that concern and had a procedure in place to address the issue related to the dishwasher water temperature. Golfview established a procedure for achieving the specified hot water temperature of the dishwasher. The procedure was to run the dishwasher three cycles before running a wash cycle to overcome the cooling effect of a nearby air conditioner on the metal dishwasher. Golfview's standard dishwasher procedures did not include raising boiler temperatures. Nonetheless, in response to the concern raised by the surveyors regarding the dishwasher temperature, Respondent's maintenance director increased the temperature of the boiler at Golfview in order to increase the temperature of the water going into the dishwasher. The water at Golfview is heated by one 100-gallon boiler which is thermostatically controlled. The boiler is heated with propane gas and has a pilot light. Golfview has a circulating pump which circulates heated water throughout the building. The circulating pump is also thermostatically controlled. On the morning of April 3, 2001, and after the facility's maintenance director had raised the boiler temperature, the surveyors observed that the water temperature in some of the resident sink faucets seemed hot to hand touch. Consequently, the survey team leader asked the Agency's life safety inspector surveyor to test the water temperatures in resident rooms. Upon measuring the water temperature, the surveyor reported that he found the water temperature in one resident room to be 122 degrees Fahrenheit (hereinafter all references to temperatures will be in Fahrenheit degrees). However, that room was unoccupied and no resident was assigned to that room. Rule 59A-4.133(16)(d), Florida Administrative Code, requires the water temperature in resident rooms be between 105 and 115 degrees Fahrenheit. Later on April 3, 2001, the surveyors advised Golfview management of their concern that the water temperatures exceeded the rule requirements. In response, the Golfview maintenance director explained to the surveyors that he had increased the boiler temperature to accommodate the surveyors' concerns about the temperature of the dishwasher water and that he would reduce the boiler temperature. Soon after the maintenance director reduced the boiler temperature, the water temperatures in the resident rooms returned to the limits required by the applicable rule. On April 3, 2001, after 12:15 p.m., there were no resident rooms in which the water temperatures exceeded 115 degrees. Moreover, when the surveyors left Golfview at the end of the day on April 3, 2001, the water temperatures in the resident rooms were within acceptable ranges. Due to the surveyors' expressed concern over water temperatures in discussions with facility management, Golfview called its plumber on April 3, 2001, the first day of the survey. The plumber came to Golfview within thirty (30) minutes of being called and immediately began to work on and/or evaluate the hot water system. Plumbers returned to the facility the next day and continued to evaluate, work on, and/or adjust the hot water system throughout the April 2001 survey, including April 5, 2001. In fact, during most of the time the surveyors were at the facility, the plumbers were also there working on the hot water system. Based on the survey team's April 3, 2001, discussion with Golfview staff, the following day the team decided to conduct another check of the water temperatures in the resident rooms. On April 4, 2001, the thermometers to be used for the temperature checks were calibrated, and the surveyors measured the water temperature in 15 resident rooms. This water temperature check revealed that 4 of the 15 resident rooms had water temperatures higher than 115 degrees. On April 4, 2001, the surveyors were measuring the water temperatures in the resident rooms during the time the plumbers were at Golfview evaluating, working on, and/or adjusting the water system at the facility. On April 4, 2001, based on their water temperature measurements, the surveyors notified Golfview management that a situation of "immediate jeopardy" existed. Golfview immediately developed and implemented a plan of correction designed to protect staff, residents, and visitors from exposure to water temperatures in excess of that permitted by rule. Golfview provided its written plan of correction to the surveyors that same day. By 5:30 p.m. on April 4, 2001, the surveyors determined that an acceptable plan of correction had been presented and that the water temperatures were and would remain within levels required by rule. Because of the immediate action taken by the staff of Golfview as well as the physical limitations of the residents, residents of the facility were not in jeopardy of being burned or scalded by the hot water temperatures on either April 3 or 4, 2001. All but one of the residents required assistance with bathing and that resident is an alert, strong 55-year-old, wheelchair-bound male. With regard to residents needing assistance, the certified nursing assistants who provide assistance with bathing are specifically trained in the use of hot water with the elderly, including training to test water on themselves prior to bathing the residents. In total, throughout the three-day survey, including the period while the plumbers were adjusting the system, the surveyors found water exceeding 115 degrees in 4 out of the 15 rooms that were checked. The surveyors believed and noted on the survey report form that where the water temperature exceeded 115 degrees, the residents assigned to the room and other residents who might go into the rooms, were at risk for burning or scalding if they used the bathroom facilities. The survey report noted that the hot water temperature presented a potential for accident hazards from burns or scalding to skin, particularly for frail and elderly residents. However, despite the Agency's findings as reported and summarized on the survey report, the surveyors did not explain on the report nor did the Agency present evidence at hearing as to why or how the residents were at risk or in any imminent danger of being burned or scalded from hot water. The survey report indicated that on April 3, 2001, the administrator took immediate action to alleviate the potential risk of harm to any resident. The report stated in relevant part the following: Based on the excessive and fluctuating temperatures posing a serious threat to resident safety the administrator was advised of the nature of the problem and immediate jeopardy was identified. The administrator took immediate action, calling a plumber (who arrived within 30 minutes), made an announcement regarding the elevated temperature of the water over the intercom and requested that the hot water not be used until approval was given. Nursing staff then went back to each room and told all residents of the problem. The director of nursing staff stated showers were not to be given until the issue had been resolved. A department head meeting was held by the administrator. The plumber called in his supervisor to assist in determining the problem, temperature adjustments were made and following the lowering of the boiler temperature, temperatures were measured again and determined to be from 103 to 108 degrees F. The plumbers were scheduled to return 4/04/01 to further evaluate the systems. The facility administrator developed an acceptable action plan to maintain water temperature levels and ensure resident safety until it could be determined that the hazard was corrected. Based on the immediate action of the supervisor and the acceptable action plan to maintain safe temperature levels the jeopardy was removed at approximately 5:30 p.m. on 04/04/01. At the time of the April 2001 survey, Golfview had a written policy for monitoring and maintaining hot water temperatures at the facility. Included in the policy were requirements for regular monitoring and recording of water temperatures at the facility and for taking immediate corrective action in the event that water temperatures were found to be out of the designated range. Pursuant to Golfview's policy regarding the testing and regulation of hot water, the maintenance director is responsible for checking the water temperatures at the facility, including resident rooms, showers, and the kitchen dishwasher, and keeping a weekly written record of those temperatures on a log sheet. A copy of the log sheet, titled, "Weekly Hot Water Temperature Log Sheet," was attached to Golfview's policy regarding the testing and regulation of hot water. On the log sheet, spaces were provided to record the date of the testing, the name and title of the tester, the room where the hot water was tested and the temperature of that water. Finally, the log sheet included a section which directed the tester to document any concerns and plans of correction. On April 3, 2001, after reviewing Golfview's policy on hot water testing and regulation, the survey team requested copies of the weekly log sheets required to be maintained by the policy. Initially, the maintenance director told the survey team that there were no logs for them to review. However, the next day, the maintenance director provided the survey team with 13 sheets of paper on which he had recorded room numbers and the hot water temperatures in those rooms. Only 1 of the 13 sheets with room numbers and hot water temperatures included the dates the temperatures were measured. One of the sheets on which the maintenance director had recorded temperatures reflected the hot water temperatures as measured in selected rooms at Golfview on February 11, 2001, and March 29, 2001. On both days, the recorded hot water temperature for several rooms exceeded the temperature required by rule. The sheet noted that on February 11, 2001, four of the five resident rooms where water temperatures were measured had hot water temperatures of 116 degrees, one degree above what is required by rule. On March 29, 2001, at least seven of the resident rooms had water temperatures higher than 115 degrees. The maintenance director regularly measured and recorded the hot water temperatures at the facility. Typically, if he determined that the hot water temperature was not within the prescribed range, he made the necessary adjustments to the hot water system to resolve the problem. He did not nor did the policy require him to report the hot water temperatures to the facility administrator. The maintenance director did not record the concern or problem that existed on February 11, 2001, or March 29, 2001, that might have caused the elevated hot water temperatures in the facility. However, he recalled the problem that resulted in the elevated hot water temperatures on March 29, 2001. The credible testimony of the maintenance supervisor was that because the pilot light of the boiler had gone out, he came in about 5:30 a.m. on March 29, 2001. Upon arriving at the facility, the maintenance director relit the boiler and turned up the boiler temperature so that the water would reheat more quickly. He then continued to adjust the thermostatically controlled boiler while water temperatures stabilized and monitor water temperatures until they stabilized within proper range. When this process had to be implemented, it usually took about an hour to an hour and a half to adjust the hot water temperatures and get them back down to the required temperature range. Upon completion of the survey, the Agency documented its findings on a standard survey report form, titled "Statement of Deficiencies and Plan of Correction." On the form, each deficiency is noted and referred to as a "tag." The tags cited on the survey form for the April 3-5, 2001, survey of Respondent's facility relevant to this proceeding were Tags F323 and F490. Tag F323, which references 42 C.F.R., Subsection 483.25(h)(1)(2001), requires that the facility ensure that the resident environment remains as free of accident hazards as is possible. On the survey form, the Agency has stated that Respondent did not ensure the control of the temperature of hot water used by residents in that 4 of 15 rooms surveyed had hot water temperatures in excess of the 115 degree allowable under Rule 59A-4.133(16)(d), Florida Administrative Code. Tag F490, which references 42 C.F.R., Section 483.75 (2001), requires that Respondent’s facility be administered in a manner that enables it to use its resources effectively and efficiently to maintain the highest practicable physical, mental, and psychosocial well-being of each resident. On the survey form, the Agency noted that Respondent was deficient in this area because it failed to administer the facility to ensure the highest practicable physical well-being of each resident. Specifically, the report noted that the excessive hot water temperatures placed the residents at risk for burns and scalding. The Agency assigned both the Tags F323 and F490 deficiencies noted on the survey form as Class I violations. The Complaint also classified both allegations as Class I deficiencies and imposed civil penalties of $15,000 for the former allegation and $10,000.00 for the latter allegation. Golfview has no prior deficiencies related to water temperatures. Furthermore, Golfview's maintenance director has been employed by Golfview for five years and has never experienced a deficiency for water temperatures during that time or during his prior employment at another nursing home. There is no indication that prior to the events of April 3-5, 2001, and through that time, that Golfview had experienced any incidents or resident injuries due to excessive hot water temperatures or had any complaints because of excessive hot water temperatures. The Agency's surveyor team member who was designated as the Life Safety Inspector and who took most of the resident room temperatures during the April 2001 survey did not testify at the hearing in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order finding that Respondent did not violate Rule 59A-4.133, Florida Administrative Code, as alleged in the Administrative Complaint and, thus should not be assessed a civil penalty. DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 6th day of November, 2001. COPIES FURNISHED: Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32301-0623 Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701
Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
The Issue Whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence and testimony of the witness presented and the entire record in this proceeding, the following findings of fact are made: On February 15, 2001, Angela Carragher, Safety and Sanitation Supervisor, conducted an initial inspection of Respondent. Ms. Carragher conducted re-inspections of Respondent on February 16, 2001, and March 5, 2001. During the inspections, Ms. Carragher observed numerous rodent droppings in the backside storage closets, as well as in the food storage area on the shelves. Rodent droppings are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. Ms. Carragher observed moldy vegetables in the walk- in cooler. Moldy vegetables in the walk-in cooler are a critical violation because spoiled food is not safe to serve to a customer. Ms. Carragher observed raw beef stored over some lettuce and cheese that were in the walk-in cooler. Raw beef stored over ready-to-eat foods like lettuce and cheese are a critical violation because raw beef can have bacteria, which could contaminate or cross-contaminate those ready-to-eat items. Ms. Carragher observed that Respondent did not have proof of a certified food manager at the facility. The certified food manager is the person who has the responsibility to ensure that all of the food workers are trained in food safety and proper food handling and that the facility is following all requirements of the Food Code. Proof that a certified food manager at the facility is critical because, otherwise, there is no way to know if somebody is supervising and overseeing the establishment. Ms. Carragher observed that the fire suppression system was not currently tagged and certified and that an emergency light did not light when tested. The fire suppression system is required to be inspected and certified every six months. The fire suppression system was last inspected in March 2000. A certified and tagged fire suppression system is critical because in the event of a fire, the system may fail to automatically discharge and put the fire out. Ms. Carragher observed an unlabeled spray bottle containing some unidentifiable green chemical solution. Restaurants often use a number of different chemicals in their kitchen, such as window cleaners, degreaser, and sanitizers. An unlabeled spray bottle is a critical violation because an employee may mistakenly use a wrong chemical on the wrong surface, which could create a contamination hazard for food items. Ms. Carragher observed dried food debris on the slicer and inside the three-door, reach-in cooler. Dried food on the slicer and cooler surfaces is a violation because dried food can harbor bacteria which can potentially contaminate fresh food. Ms. Carragher observed that the heat lamp bulbs on the cook's line were not shielded. Unshielded heat lamp bulbs are a violation because should a lamp break, the shattered glass may fall into the food to be served causing a physical hazard. Ms. Carragher observed that the ice scoop was stored on the top of the ice machine and not on a clean surface. The ice scoop is used to scoop the ice that is going to be used for beverages and food. The ice scoop stored on the top of the ice machine is a violation because the top of the machine contains dust and debris, which may cause potential physical contamination. Ms. Carragher observed holes in the walls in the backside storage closet, and grime accumulated on the floor underneath the sink and on the walls in the dishwashing area. Holes in walls and accumulated grime on sinks and walls are a violation because the dirt may contaminate clean dishes and holes may permit access by vermin. Ms. Carragher observed that the gasket on the door on the reach-in cooler was torn. A torn gasket is a violation because the gasket forms a barrier between the outside and inside of the cooler preventing hot air from the kitchen from getting into the cooler. It also creates a place where mildew can grow and contaminate food. Ms. Carragher observed that the carbon dioxide tank in the kitchen was not secured. A carbon dioxide tank which is not secured is a safety violation because a pressurized tank may be propelled violently by the compressed gas if the valve is damaged, hurting people in the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered for suspension of Respondent's license until he pays a fine in the amount of $2,000. DONE AND ENTERED this 21st day of December, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of December, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Lewis Pace Ramada Inn Restaurant 20349 North U.S. Highway 27 Clermont, Florida 34711 Manohar Jain Ramada Inn Restaurant 4800 South Apopka Vineland Road Orlando, Florida 32819 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Upon consideration of the evidence presented, including the demeanor and credibility of the witnesses, the following facts are determined: [NATURE OF OCEANSPRAY'S CITRUS PROCESSING PLANT OPERATIONS] OCEANSPRAY owns and operates a citrus concentrate processing plant in Vero Beach, Florida. The plant processes grapefruit received from local growers into grapefruit concentrate which is stored and later transported elsewhere for further processing, distribution, and sale to the public. During 1978, the plant also produced livestock feed as a by-product of the citrus concentrate process. (Testimony of Childs, Henly.) The business operates on a seasonal basis. Ordinarily, the plant begins processing operations in October or November, when the first grapefruit begin to arrive. As the grapefruit season progresses and fruit becomes more plentiful, additional shifts are added and more employees hired. Finally, as the growing season ends and grapefruit becomes less available, the cycle reverses itself: the number of shifts are reduced, and employees are laid off. The fruit processing season normally ends in June or July. Since fruit processing machinery will not be operated again until the next October or November, machine operators are ordinarily laid-off. The only employees that ordinarily remain employed, on a year-round basis, are mechanics, security guards, janitors, And certain key personnel of the company. (Testimony of Childs, Henly, Calfee.) I. [UNEQUAL PAY AND RECLASSIFICATION OF FEMALES AS GENERAL PAINTERS] Instead of laying-off all machine operators at the close of the fruit processing season in July, 1978, OCEANSPRAY retained several seasonal employees during the summer off-season. These employees, with their seasonal and summer job classifications, and salaries are indicated below: E Males: Job Classification Hourly Salary Job Classification Hourly Salary Willie Billie Alford Production Leadman Norsworthy Assistant 4.35 3.85 Extractor Operator Assistant 4.35 3.05 Extractor Operator Extractor Operator Floyd Brennan Ramp Driver Johnny Norsworthy Extractor 4.45 4.10 Ramp Driver Extractor 4.45 4.10 Operator Don Thompson Limer 3.65 Operator Limer 3.65 Richard Oliver Dryer Operator 4.10 Dryer Operator 4.10 Ann Pyle Taste Evapo- 4.10 rotor Operator General Painter 3.65 2/ Jennie Gilyard Waste Heat 4.10 General Painter 3.65 2/ EMPLOYEE SEASONAL SUMMER Women: Evaporator Operator 4.10 General Painter 3.65 2/ 4.10 General Painter 3.65 2/ 3.25 General Painter 3.65 2/ 4.10 General Pointer 3.65 2/ Elaine Rinker Waste Heat Evaporator Operator Katherine Hughes Waste Heat Evaporator Operator Veronica McCarty Outside Grader Ruby Simpson Waste Heat Evaporator Operator (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) At OCEANSPRAY, hourly employees are paid salaries in accordance with job classifications established by the company. During the summer of 1978, the six (6) seasonal male employees retained their seasonal job classifications and salaries; the females did not. The six (6) females were placed in a new classification established by the company--General Painter--and paid a salary of $3.65 an hour. 2 For five (5) of the six (6) females, this represented a cut in pay from their seasonal salaries. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) Although the six (6) male employees retained their seasonal job classifications and salaries, their work duties during the summer of 1978 did not conform to their job classification. Alford, classified as Production Leadman, worked as a painter; B. Norsworthy, classified as Assistant Extractor Operator, worked as a painter; Brennan, classified as Ramp Driver, worked as a mechanic; J. Norsworthy, classified as an Extractor Operator, worked as a painter; Thompson, classified as a Limer, worked as a Spray Field Attendant; Oliver, classified as Dryer Operator, worked as a mechanic. In contrast, the six (6) female employees were reclassified as General Painters, and painted walls, buildings, and plant equipment. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) The three (3) male employees who worked primarily as painters during the summer--Alford, D. Norsworthy, and J. Norsworthy (for only part of the summer) --painted loading bins and elevators outside the buildings using a scaffold 25-30 feet high. The scaffold, consisting of one-inch pipe, required assembly, had no hand-rails, and was not very steady. The six (6) females painted bins, machinery, and walls inside the plant and at ground level. Vern Dost, the Cold Room Operator, frequently performed similar inside painting after completing his primary work as Cold Room Operator. When he performed such painting, he was paid his regular Cold Room Operator salary-- $4.00 an hour. Alford and the Norsworthys also performed inside painting, similar to that performed by the females, when rain interfered with their outside scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) When several female painters, including Ms. Gilyard, complained that their salaries were less than those paid the male painters, the plant manager told them that if they wanted to paint on the scaffold, they would get the same rate as the men, i.e. their seasonal salaries. This offer was refused by Ms. Gilyard; it was not extended to Ms. Pyle. The only difference between the painting performed by the females, and the scaffold painters was the increased danger associated with painting at 25- 30 foot elevations. However, no separate job classification was established for scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) Alford and 13. Norsworthy, the primary scaffold painters, were initially retained for summer employment "to do whatever . . . we (management) wanted them to do" (Tr. 150) The job that was later assigned them, and which ultimately took most of their time, was the painting of the bin posts. (Testimony of Childs.) When Ms. Gilyard and Ms. Pyle initially sought summer employment, OCEANSPRAY did not inform them that they could retain their seasonal salaries if they were willing to paint from scaffolds. (Testimony of Pyle, Gilyard.) OCEANSPRAY's actions in cutting the salaries of five (5) of six (6) female summer workers, and continuing the male employees at their seasonal salaries prompted the company's accountant/bookkeeper to send to the plant manager a memorandum containing the following excerpt: [it] doesn't seem fair that women went to painter and Billy Norsworthy, Richard Oliver and Don Thompson stayed at their season rate. What do they get ad- justed to?" (Tr. 425.) (Testimony of Calfee.) Between July 30, 1978, and September 3, 1978, Ms. Gilyard worked 247 hours for OCEANSPRAY as a General Painter at $3.65 an hour. After receiving a rate adjustment on September 10, 1978, she was paid $3.85 an hour from September 4, 1978, for 287.5 hours, extending through October 21, 1978. If her seasonal salary of $4.10 had been paid during this period, she would have received an additional $183.03. In like fashion, Ms. Pyle worked 135.5 hours at $3.65 an hour as a General Painter at OCEANSPRAY from July 30, 1978, through September 3, 1978. From September 4 through October 21, 1978, she was paid $3.85 an hour for 335.5 hours. If she had been paid during this time at her seasonal salary of $4.10 an hour, she would have received an additional $144.86. (P.E. 4.) II. [UNEQUAL LAYOFF POLICY AND HOURS] From May through July, 1978, as grapefruit became less available, OCEANSPRAY reduced its-three fruit processing shifts to one, and laid off certain seasonal employees. On some days, no fruit would arrive, and fruit processing employees would perform other work, such as maintenance and cleanup. On other days, grapefruit concentrate would be reprocessed for subsequent shipment. Such reprocessing consisted of dumping juice from barrels, then blending and rebarreling it. A forklift is used to pick up the barrels and place them on rollers, where they are conveyed into a tilt mechanism. The barrels are then strapped or chained and, by hydraulic mechanism, are tilted and dumped. One person would normally operate the forklift, while others would perform the other related tasks. This reprocessing of grapefruit concentrate is of medium physical difficulty, and not beyond the physical capabilities of female employees. (Testimony of Childs, Gilyard.) During this three-month slump period, George Dest, the plant manager, decided which employees would be laid off and which would remain. His selections were ordinarily based on seniority. However, he departed from this policy by retaining "key people" to work during reprocessing days. "Key people" were those employees holding two principle jobs in fruit processing-- evaporator operators, extractor operators, lab technicians, and dryer operators for the feedmill. Such "key people" were retained on full employment during fruit reprocessing days. Although Ms. Pyle and Ms. Gilyard were Evaporator Operators and considered "key people", they were not retained for employment on reprocessing days. OCEANSPRAY asserts that the reason for their exclusion is that neither was qualified to operate a forklift. It is true that no female employees during this period of 1978 were qualified to operate a forklift. (Testimony of Childs, Gilyard, Pyle, Hill, Rinker, Hughes, Williams.) Ms. Pyle and Ms. Gilyard were not called in for reprocessing work because of OCEANSPRAY's plant manager's decision to "keep the guys because . . . they would be dumping barrels." (Tr. 137.) While the manager did not mention Ms. Pyle and Ms. Gilyard by name, he told his subordinate: "Let the girls be off and bring guys in." (Tr. 138.)(Testimony of Childs.) 14.. OCEANSPRAY's weekly pay records for the weeks of April 9 through July 16, 1978, indicate that the average weekly number of hours worked by male employees consistently exceeded the average weekly hours worked by females. (Testimony of Calfee; P.E. 5, 12.) Ms. WILLIAMS admits that she was selected not to work on certain days during the shipping period based on her seniority. (Testimony of Williams.] After July 1, 1978, due to their exclusion from fruit reprocessing Ms. Pyle and Ms. Gilyard worked less weekly hours than the average number worked by male employees. If they had worked hours equivalent to the average number worked by male employees, Ms. Pyle would have received an additional $27.68, and Ms. Gilyard, an additional $22.55. (Testimony of Calfee; P.E. 4.) III. [UNEQUAL WAGES] During 1978, out of a workforce of 150 employees (100 males, 50 females), OCEANSPRAY paid three male employees at a rate in excess of the rate corresponding with their official job classifications: Employee Official Job Classification Rate for Job Classification Pay Rate Received Floyd Brennan Ramp Driver $3.75 $4.45 Bill Ware lead Mechanic 4.85 5.40 Willie Alford Extractor Operator 4.10 4.30 No female employees at OCEANSPRAY were paid, in like fashion, amounts in excess of the rates warranted by their job classifications. (Testimony of Calfee, Hill; P.E. 2, 3, 4.) However, in two of the three cases listed above, the employees received pay which was justified by new or additional assigned duties. Brennan discharged the duties of a Fruit Leadman, in addition to those of a Ramp Driver. Indeed, "Rec. leadman" is noted on Brennan's payroll record. In the case of Alford, he was promoted to Production Leadman in June of 1978. His new and different responsibilities were assumed due to the vacancy in the Production department caused by the promotion of Hill to Production Supervisor. (Testimony of Hill; P.E. 2, 4, 9.) In the remaining case, Ware was promoted to Lead Mechanic in July of 1978--with a job classification pay rate of $4.85 an hour. However, he was paid the proposed higher future rate for that classification--$5.40 two months before its effective date. This admitted overpayment was caused by OCEANSPRAY's inadvertent error. (Testimony of Hill.) Numerically equivalent treatment of OCEANSPRAY's male and female employees--with a work force of two males to one female--would allow two males and one female to receive pay in excess of their official job classifications. In this case, OCEANSPRAY's slight disparity in treatment of males and females is not statistically significant and is insufficient to establish a prima facie claim of discrimination, or disparate treatment. Numerically equivalent treatment, for all practical purposes, would be achieved if only one additional female, or one less male employee, had received pay in excess of their official job classifications; such equivalency would preclude a bona fide disparate treatment claim. (Testimony of Hill, Calfee.) IV. [AS TO MOTION FOR CLASS CERTIFICATION] No evidence was presented which establishes that OCEANSPRAY's alleged unlawful employment practices continued beyond the summer of 1978. The Human Rights Act does not apply to employment practices which occurred prior to its effective date-- July 1, 1978. Thus, the time period within which the membership of potential classes must vest is limited. There are two potential classes of female employees which are indicated by the evidence: (1) seasonal female employees who were classified as General Painters for the summer of 1978, and whose pay was reduced, accordingly; (2) "key" seasonal female employees who were laid-off and not employed for fruit Concentrate reprocessing work during July, 1978. The Potential membership of these two classes is not so numerous that joinder of all members would have been impractical. (Testimony of Childs; P.E. 11, I.E. 1, 2, 3.)
Conclusions Respondent is guilty of violating Section 23.167, Florida Statutes (1979), by engaging in discriminatory employment practices (1) and (2) above; and not guilty of (3) Affirmative relief, in the nature of compensatory damages, should be granted Petitioners. Background On August 3, September 25, and October 10, 1978, Petitioners Jennie Cilyard ("Ms. CILYARD") , Anne Pyle ("Ms. Pyle") and Diane Williams ("NS. WILLIAMS"), respectively, filed separate complaints with Intervenor, Norman A. Jackson, Executive Director, Florida Commission on Human Relations " COMMISSION") These complaints accused Respondent Oceanspray Cranberries, Inc., ("OCEANSPRAY") of engaging in several unlawful employment practices which discriminated against them on the basis of sex. In September, 1979, after investigation, the COMMISSION found "reasonable cause" to believe that the complained of unlawful employment practices had occurred. After the parties conciliation efforts were unsuccessful, the COMMISSION issued its Notice of Failure of Conciliation in November, 1979. In December, 1979, the three female Petitioners filed separate petitions for relief with the COMMISSION, alleging sexual discrimination b OCEANSPRAY and relying upon the COMMISSION' s "reasonable cause" determination. These three petitions were consolidated for hearing, and the COMMISSION's motion to intervene as a party was granted. Two weeks before final hearing, Petitioners filed a notion to certify this cause as a class action, consisting of all past, present, and future female employees of OCEANSPRAY. Ruling was reserved pending final hearing, and the parties were required to limit evidence relating to the class action allegations to those matters encompassed by COMMISSION Rule 9D-9. 08(6)(a) through (d), Florida Administrative Code. At final hearing, Petitioners testified in their own behalf, and called Lealan Herbert Childs, farmer OCEANSPRAY plant superintendent, and Marcy Calfee, COMMISSION investigator, as their witnesses. They also offered Petitioners' Exhibits 1/ 1 through 13, each of which was received into evidence. The COMMISSION offered Intervenor's Exhibits 1/ 1 through 3, each of which was also received into evidence. At the conclusion of the Petitioners' case-in-chief, OCEANSPRAY moved to dismiss that part of the petitions incorporating charges contained in paragraphs D, E, and G of the COMMISSION's reasonable cause" determination, on the ground that no evidence had been offered to support such charges. The motion was granted, as to paragraphs D and E, and denied as to paragraph G. Respondent OCEANSPRAY called as its witnesses George Russell Hill, OCEANSPRAY production superintendent, Elaine Rinker, former OCEANSPRAY scale and evaporator operator, and Katherine L. Hughes, OCEANSPRAY evaporator operator. At their request, the parties were granted forty-five (45) days from filing of the transcript to submit past-hearing proposed findings of fact and conclusions of law. Petitioners and Respondent timely filed their post-hearing filings on August 18, 1980. The parties agreed that the time period for submittal of the Recommended Order would commence at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations find that OCEANSPRAY engaged in unlawful employment practices and grant Petitioners affirmative relief, as described above. DONE AND ORDERED this 7th day of October, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. The Respondent is a restaurant located at 29 North Boulevard of the Presidents, Sarasota, Florida 34236. Giuseppe Casadio owns and operates the restaurant. On March 25, 2002, an employee representing the Petitioner performed a routine inspection of the Respondent restaurant. Violations of applicable food and fire safety regulations, adopted and enforced by the Petitioner, were noted during the inspection. The inspector identified the violations to the owner and scheduled a re-inspection for March 27, 2002. On March 27, 2002, the Petitioner's employee re- inspected the Respondent restaurant and determined that some of the violations remained uncorrected. The uncorrected violations are related to refrigeration problems, pest control issues, inadequate fire extinguishers, and improper use of an electrical extension cord. The refrigeration problems resulted in a failure to maintain food at appropriate temperatures. The walk-in refrigerator was not chilling properly, and food items including salmon and ham were not chilled to the 41 degrees Fahrenheit required pursuant to regulation. The required storage temperature is intended to retard spoilage and the development of bacteria. At the time of the initial inspection, the Respondent's walk-in refrigerator unit was malfunctioning. The day after the initial inspection, repairs were made to the unit, but the repairs were inadequate and the food storage temperatures remained excessive at the time of the re-inspection. After the re-inspection, additional repair work was required. Another uncorrected violation was the improper storage of a prepared garlic and oil mixture in a "reach-in" refrigerator on the cook's line. The temperature of the mixture was 56 degrees, in excess of the 41 degrees Fahrenheit required pursuant to regulation. Prepared garlic and oil mixtures present the potential for development of botulism if not chilled and stored appropriately. The pest control issue cited in the inspection related to the detection of roaches around the dishwashing machine. The restaurant has a contract with a pest control company, but the measures being taken to reduce the roach population are apparently inadequate. Fire prevention regulations require that an appropriate fire extinguisher be within a travel distance of 30 feet from "high hazard" cooking equipment. The Respondent was not in compliance with the regulations at the time of either inspection because the fire extinguisher was improperly located. Fire prevention regulations prohibit use of electrical extension cords except for temporary use during cleaning. At the time of both inspections, an extension cord was being used to power the reach-in refrigerator unit at the end of the cook's line. The Petitioner has prosecuted similar allegations against the Respondent in a prior administrative proceeding. Pursuant to a Final Order issued in 2001 based on an agreed stipulation and consent order, the Petitioner has previously identified code violations related to improper food storage temperature and inadequate fire suppression equipment during inspections in 1999 and 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order imposing a fine of $5,600, and requiring that the Respondent attend a Hospitality Education Class at his own expense within 60 days of the date of the Final Order. DONE AND ENTERED this 17th day of October, 2002, 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 17th day of October, 2002. COPIES FURNISHED: Joseph Casadio Osteria Incorporated 29 North Boulevard of the Presidents Sarasota, Florida 34236 Giuseppe Casadio 934 Boulevard of the Arts Sarasota, Florida 34236 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 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
