The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
Findings Of Fact Petitioner was employed by the University of South Florida on or about November 18, 1990 as a Senior Computer Support Specialist. As with all university employees she was required to satisfactorily complete a probationary period of six months. By memorandum dated April 26, 1991, subject: Pre-probationary appraisal (Exhibit 6), Petitioner was advised of the areas in which she should improve her performance. Petitioner offered into evidence monthly reports for February through May, 1991 (Exhibit 1-4) submitted by Petitioner's supervisor, Janis Rawdin, for the apparent purpose of showing that other members of the group supervised by Rawdin were mentioned more than was Petitioner. Nothing in these reports supports Petitioner's allegation of discrimination by reason of national origin. After Petitioner had completed her testimony with cross-examination, redirect and recross without testifying regarding her national origin, the Hearing Officer asked where she was born and Petitioner responded, the Virgin Islands. Petitioner testified that Rawdin was short and abrupt with her, treated her badly, and that she was not included in all of the training sessions. No evidence was presented that this alleged treatment resulted from, or was influenced by, Petitioner's national origin. Petitioner also testified that she was assigned projects for which she had not been trained. However, the nature of her assignment to field question from computer users at the University (and perhaps from the general public), would necessarily result in questions requiring additional research before giving a correct answer. Petitioner's assignment, as noted above, was to answer questions regarding computer usage and to help those inquiring to solve the problem they had encountered. Although repeatedly advised to use only computer terminology when responding to inquiries, which terminology was contained in the instruction books, Petitioner failed to do so. Janis Rawdin, who was Petitioner's supervisor and recommended Petitioner for dismissal at the expiration of the six months probationary period, found that Petitioner was not learning the job at the expected rate; and that Petitioner was unlikely to reach the stage where she would qualify for advanced training. In summary, Petitioner presented no evidence that her dismissal was in any wise related to her national origin. Those allegations in the Petition for Relief that she was mistreated, etc. unless associated with a right protected by the Human Rights Act of 1977, as amended, do not constitute grounds for relief in these proceedings.
Recommendation That a Final Order be entered dismissing Christie A. Jacobs' Petition for Relief from an unlawful employment practice filed against the University of South Florida. DONE and ENTERED this 2nd day of December, 1992, at Tallahassee, Florida. K. N. AYERS 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 2nd day of December, 1992. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Christie A. Jacobs P.O. Box 310774 Tampa, FL 33680-0744 Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250 Tampa, FL 33620-6250
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See § 624.307(1), Fla. Stat. (2002). Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle. Reserve Deputy McLaughlin was riding with Deputy White. Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation. Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance. Mr. Wilds added the failure to notify the Department of his address change to his investigator. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department or office in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to the Department, within 30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that Respondent's failure to notify the Department of his address changes was willful. Respondent's insurance license has not been previously disciplined in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint. It is further RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently. DONE AND ENTERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2004.
The Issue Whether Respondent, a licensed real estate salesperson, committed the offenses alleged in the Administrative Complaint, and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent has been a duly licensed real estate sales person in the State of Florida at all times pertinent to this proceeding. Prior to March 31, 1997, Petitioner mailed to Respondent a renewal notice that reminded her that her license would expire on March 31, 1997. Accompanying the renewal notice was an insert that contained the following caveat: In order to renew, the RENEWAL NOTICE MUST BE RETURNED WITH THE APPROPRIATE FEE. By submitting the appropriate fee to the department, you are affirming that you have "COMPLETED" the required classroom education. Respondent submitted her renewal card along with the requisite fee without having completed a 14-hour continuing education course required by Rule 61J2-3.009, Florida Administrative Code. Respondent's license was thereafter renewed by Petitioner, effective March 31, 1997. Respondent discovered from a discussion with her broker that she should have taken the continuing education course before she submitted her renewal application. By letter dated June 12, 1997, Respondent advised Petitioner that she sent in the paperwork for the renewal of her license before she had taken the continuing education course. Respondent successfully completed the required 14-hour continuing education course on June 18, 1997. Respondent testified without contradiction that she did not intend to misrepresent the status of her continuing education.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner find Respondent guilty of violating the provisions of Sections 475.25(1)(e) and (m), Florida Statutes, and imposes an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 9th day of June, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1998. COPIES FURNISHED: Geoffrey T. Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Rosemary Nixon, pro se 6565 Parkview Drive Boca Raton, Florida 33433 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Petitioner, Hillsborough Community College (the College), should terminate the employment of the Respondent, Corine Dismuke (Dismuke).
Findings Of Fact The Respondent, Corine Dismuke (Dismuke), was employed at Hillsborough Community College (the College) continuously from April 20, 1981. For eleven and a-half years, she worked in the Financial Aid office and was a good and valued employee. By 1994, however, Dismuke's relationship with a new supervisor had deteriorated, her morale was low, and she made her grievances known to the College. The College's ultimate resolution of Dismuke's grievances was to transfer Dismuke to the College's Financial Services office in 1994. For a time, Dismuke continued to experience difficulties at work despite the change. She thought that her new colleagues shunned and isolated her and that she was treated poorly and unfairly by her new supervisor, the Director of Financial Services, Barbara DeVries. Dismuke filed several grievances complaining about these things during her first year and a-half at Financial Services. Dismuke's supervisor thought Dismuke's attitude improved during Dismuke's second year in the Financial Services office. The evidence was clear that Dismuke was on good terms with some (but not all) of her colleagues. Dismuke's attitude changed when she began to get indications in the spring of 1997 that her position would be adversely affected if the College implemented the recommendations contained in the report of a study undertaken by the firm of Coopers and Lybrand on the College's personnel classification systems and pay scales. Under the Coopers and Lybrand recommendations, Dismuke's position would be reclassified, and her salary would be frozen, so that Dismuke would not even get cost-of-living adjustments, until her salary came in line with the report's recommended salary for the new position. Grounds for Termination and Termination Proceedings On Monday, June 30, 1997, Dismuke entered her office suite and told a co-worker, Pete Scaglione, with whom she had always gotten along with well, that he had better consider wearing a bullet-proof jacket because bullets could begin to fly soon. This upset Scaglione greatly because he perceived the comment as a direct threat to him. Scaglione assumed Dismuke's anger had something to do with the Coopers and Lybrand recommendations, which would have given Scaglione a modest salary increase. Scaglione went to another fellow employee, Beatriz Maseda, who also was greatly concerned. Both Scaglione and Maseda were concerned that Dismuke would act on her statement to Scaglione, come to work with a gun, and start shooting. Maseda advised Scaglione to report the incident to DeVries. Scaglione was afraid that DeVries would not do anything and did not want to report the incident. Maseda convinced Scaglione to report it. They discussed a personnel rule requiring him to do so. The College's Rule 6HX-10-1.017 provides: Purpose: The purpose of this administrative rule is to establish college policy that prohibits threats of violence by personnel, students, visitors or any other individual while at Hillsborough Community College. Rule: Threats to do bodily harm or property damage by College personnel, students, visitors or any other individual against another while at Hillsborough Community College is totally inappropriate. A threat of violence, either verbal or written, expressed or implied, will not, under any circumstances, be tolerated at Hillsborough Community College. Any other threat of a material and substantial disruption to the operation of the College is also prohibited. An employee making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including termination. A student making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including expulsion. Any other individual making any threat prohibited by this rule will be required to leave College property immediately. Notification will be made to the appropriate law enforcement agency where appropriate. The failure of any employee or student to report any threat prohibited by this rule that is made by students, employees, or any other person against any person or the operation of the College will also result in disciplinary action. It is stipulated that Dismuke received notice of Rule 6HX-10-1.017 as well as the College's other personnel rules. When DeVries was told of the incident the next day, she also was concerned that Dismuke would act on her statement to Scaglione. DeVries notified her supervisor, the College's Vice- President for Financial Affairs, Robert Wolf. Wolf was very concerned about DeVries' report to him and insisted on an immediate meeting with DeVries, Maseda, and Scaglione. Wolf ascertained that Dismuke actually made the comments in anger and that Scaglione and Maseda were genuinely afraid of Dismuke. Wolf also became concerned that Dismuke might act on her statement to Scaglione. He and DeVries discussed the incident and what action would be appropriate. DeVries thought that the seriousness of the threat warranted termination under the College's personnel rules, and Wolf agreed. Wolf told DeVries to monitor the situation and begin the process to terminate Dismuke. Although Wolf and DeVries were concerned for the safety of the College's personnel, and thought the matter was serious enough to warrant termination under the College's personnel rules, neither took any immediate security measures to prevent Dismuke from carrying out the threat implied in her statement. Thursday and Friday, July 3 and 4, 1997, were school holidays. On Monday, July 7, 1997, DeVries began an investigation consisting of interviews of some other employees in Financial Services. Her investigation ascertained that others also were afraid of Dismuke. One employee, Dana Livesay, reported to DeVries that on Monday, July 7, 1997, she overheard Dismuke on the telephone saying to someone, "You told me to call you if I started to lose it, before bullets started to fly, well, I'm about to lose it." After a pause, Dismuke added, "You tell me to be calm, well I don't want to be calm." Like Scaglione and Maseda, Livesay also was concerned for her safety and asked to have her work station moved farther away from Dismuke's. DeVries decided not to discuss the matter with Dismuke. For one thing, she and Wolf already had decided that termination was appropriate. For another, DeVries did not think it was appropriate for her to confront Dismuke and discuss the incident since prior discussions had been unsuccessful in addressing Dismuke's grievances, Dismuke now had made threats that DeVries felt were directed towards her. During the week of July 7, 1997, DeVries prepared an Employee Discipline Report notifying Dismuke that DeVries was recommending termination and suspending her with pay pending termination. Out of concern for her safety and the safety of others at the College, DeVries made arrangements to have two City of Tampa Police Department officers present when she met with Dismuke on Thursday, July 10, 1997, to present her with the Employee Discipline Report. For their own safety (as well as for the safety of DeVries and other College personnel), the officers searched Dismuke for weapons and found none. Dismuke refused to sign the Employee Discipline Report. DeVries and the police officers advised Dismuke that Dismuke was to leave the campus and not return, except to participate in an informal hearing to be held on Tuesday, July 15, 1997. The two police officers escorted Dismuke off campus. Dismuke remained calm and respectful and obeyed all instructions from the police officers without question. After Dismuke left, DeVries signed the Employee Discipline Report. The informal hearing on July 15, 1997, was referred to by different names (including discipline hearing, post-discipline hearing, and pretermination hearing), and Dismuke seemed confused as to its purpose. The July 15, 1997, hearing was conducted by a College administrator named Charles M. Sackett. Sackett questioned several witnesses, including Wolf, DeVries, Scaglione, Maseda, and Livesay. He gave Dismuke an opportunity to question the witnesses and to testify on her own behalf, but she declined. Dismuke thought it better to just listen to the evidence against her because she did not feel prepared to cross-examine witnesses and present a case in her behalf and because she understood that the informal hearing would be followed by a formal hearing at which she would be better prepared. Sackett accepted written material from Dismuke but declined Dismuke's request that he obtain the witnesses' sworn answers to written questions Dismuke had drafted; however, he advised her how to obtain a tape recording and verbatim transcript of the informal proceeding. After the informal proceeding, Sackett prepared a report which recommended to interim College President, Dr. Jeff Hockaday, that the "termination of Ms. Dismuke's employment with the College be affirmed." Wolf and Executive Vice-President Dr. Diana Ferreira signed the Employee Discipline Report on July 15, 1997; Hockaday signed the next day and required that Dismuke's suspension with pay continue, pending action by the College's Board of Trustees on the termination recommendation. The position of Human Resources Vice-President was vacant during the summer of 1997, and the Employee Discipline Report was not signed by anyone from the College's Human Resources Department. Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated a Personnel Action Notice (PAN) to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. On August 1, 1997, Dr. Gwendolyn Stephenson became the President of the College. She satisfied herself that the pending proceedings for Dismuke's termination were appropriate and proceeded with them. (She also proceeded with action to terminate another employee for threatening violence.) Dismuke thought the Board meeting on September 17, 1997, was her formal termination hearing, and she came prepared to defend herself. Instead, she was informed: that she already had had her "pretermination hearing"; that she could make a presentation to the Board prior to its decision on the termination recommendation but only would have an opportunity for a full-blown, formal hearing if the Board of Trustees approved the recommendation for her termination; and that one option would be to request hearing before the Division of Administrative Hearings (DOAH) under Chapter 120, Florida Statutes (1997). The Board voted to terminate Dismuke. (The Board member who seconded the motion to terminate Dismuke commented that it was "the only way to get to a post-termination hearing.") Dismuke's Defenses Denial. Dismuke's first defense was that she never made the statements attributed to her. As part of this defense, Dismuke suggested that the witnesses (including Scaglione, whom Dismuke considered to be her one good friend in Financial Services until June 30, 1997), conspired with Barbara DeVries to fabricate grounds to terminate her. This defense is rejected as being untrue. First, it is clear that Dismuke was very angry as a result of what she viewed to be the unfair impact of the results of the Coopers and Lybrand study on her personally. This perceived injustice had the effect of reviving all of her earlier grievances and animosities against the College and her supervisor. The statements attributed to Dismuke are consistent with her past behavior under similar circumstances. Dismuke has a history of using threats of violence to get attention and to get her way. Dismuke herself insisted on calling Carolyn Speed- Green, the Assistant to the President for Institutional Equity, to testify and sponsor a report Speed-Green wrote during the College's efforts to resolve Dismuke's acrimonious dispute with her former supervisor in Financial Aid in 1994. The report included a copy of a letter Dismuke wrote to the President of the College stating that Dismuke drove to work one day with a gun and the intention of shooting her supervisor before she "returned to reality," but changed her mind because she could go to jail for that and decided to call in sick. Speed-Green's report also referenced evidence that Dismuke had made a similar statement (that she "started to shoot" the supervisor) in a meeting with the supervisor three years earlier. Dismuke claimed that the incident related in the letter to the President in 1994 and in the earlier statement to her supervisor were fabricated to get attention and the response she desired from the College. Another witness called by Dismuke, Sandra Rodriguez (f/k/a Sandra Castro) testified that, within a few weeks after Dismuke began work in Financial Services, Dismuke told the witness that Dismuke actually came to work with a gun and with the intention of shooting her supervisor. But the apparent admission could have been another fabrication for effect. Even in her own testimony at the final hearing in this case, Dismuke made a veiled threat of violence. After describing how desperate she would be if she did not get her job back with back pay, she made a plea that it was "time that someone took the initiative to stop all this madness. Once I'm out on the street, I don't know how I'm going to act. They're all saying that I'm violent. They're all saying that I'm crazy. When I'm out on the street homeless and hungry with my two grandchildren, who's to say if I won't become violent." "Threat Against Another." As previously mentioned, the College's Rule 6HX-10- 1.017 prohibits "[t]hreats to do bodily harm . . . against another while at Hillsborough Community College." Dismuke's next, alternative defense was that, if found to have uttered the statements attributed to her, her threats were not "against another" and did not violate Rule 6HX-10-1.017. It does seem that Scaglione misunderstood Dismuke's intent in thinking that Dismuke was threatening to shoot him. Rather, it seems that her statement was meant to imply that she would be shooting someone else but that Scaglione should wear a bullet-proof vest to avoid being injured by a stray bullet. But regardless which was Dismuke's intent, her statement threatened not only Scaglione but also all of the employees in her work area. Dismuke does not seem to appreciate the seriousness of the threats embodied in the words she uttered. Clearly, several of her co-workers, including DeVries, felt threatened by Dismuke's statements, and their feelings were not unwarranted. Alleged Selective Enforcement. Dismuke also argues that the College treated her unfairly because another employee, Sladen McLaughlin, was not terminated for threatening a co-worker, Mattie Brown. According to Brown, Brown went to McLaughlin's work-station to get information she needed to trouble-shoot a telephone problem, and McLaughlin told her to leave because he did not want to talk to her about it. When she persisted, McLaughlin "viciously" rose from his chair and told her to get her "uppity ass" out of his office. According to McLaughlin, he just got angry at the manner of Brown's persistence and told her not to act like a "smart ass." Either way, it was not clear from the evidence that McLaughlin threatened Brown with violence or bodily harm. He certainly did not threaten to shoot her. There is no comparison to Dismuke's threats. In addition, contrary to Dismuke's defense, she was not the only employee terminated at the Board's September 17, 1997, meeting for violating Rule 6HX-10-1.017. See Finding 18, supra. Alleged Violation of Progressive Discipline. Dismuke also argued that the College should not be permitted to terminate her because it did not follow its progressive discipline procedure. It is clear that while the College's Administrative Procedure 2.043 provides for progressive discipline, the procedure also affords supervisors discretion to skip one or more steps in the procedure. Specifically, immediate termination is authorized "if an employee's performance . . . is serious enough to warrant such actions." Termination for Dismuke's threatening statements was not an abuse of discretion. Alleged Procedural Violations. Dismuke also argued that, under Administrative Procedure 2.049, she was entitled to receipt of a Personnel Action Notification (PAN) from the President via the Associate Vice-President of Personnel Services but that she only received an unsigned copy of the Employee Discipline Report from DeVries. Administrative Procedure 2.049 was not introduced in evidence. Administrative Procedure 2.043, which was introduced in evidence, provides in pertinent part: A recommendation for termination must be included on an Employee Discipline Report form for review and approval by the unit administrator, the Campus/District-level Vice President, and the Executive Vice President (where applicable) and the President. . . . The Associate Vice President for Human Resources will notify the employee that the President is recommending his/her termination by certified mail, return receipt requested, with a copy of the Employee Discipline Report form. It was not clear from the evidence that Dismuke did not receive a PAN; the evidence was that Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated the PAN for Dismuke's termination during a vacancy in the position of Associate Vice President for Human Resources. The purpose of the PAN was to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. It was not clear from the evidence that Dismuke did not receive her copy of the PAN. It also was not clear from the evidence that Dismuke did not receive a copy of the signed Employee Discipline Report. The copy she received from DeVries on July 10, 1997, was not signed, but the original was signed by several College officials after Dismuke refused to sign it. Dismuke also complained that several College administrators other than the College President recommended her termination. Dismuke argued that only the College President was authorized to do so. Clearly, the ultimate recommendation for termination placed before the College Board of Trustees normal comes from the president (or acting president), as occurred in this case. However, just as clearly, the College President is entitled to obtain recommendations from other administrators as part of the president's decision-making process. In this case, Acting President Hockaday initially recommended termination based on the recommendations of other College administrators, and President Stephenson did the same. There was no procedural infirmity in either termination recommendation. Alleged Double Jeopardy. Dismuke also argued that it was unfair "double jeopardy" to suspend her and terminate her for the same offense. To the contrary, the evidence was clear that Dismuke was suspended with pay pending the Board's decision on the College President's recommendation of termination. This was in accordance with the College's Administrative Procedure 2.043. The suspension with pay and the termination were both part of the imposition of a single discipline. There was no "double jeopardy." No Rules on Termination Hearings. There was no evidence of any rules providing for or governing either the July 15, 1997, hearing or the hearing before the Board of Trustees on September 17, 1997.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Hillborough Community College enter a final order terminating the employment of the Respondent, Corine Dismuke. DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Corine Dismuke, pro se 10312 Penny Tree Place Tampa, Florida 33624 Dr. Gwendolyn H. Stephenson, President Hillsborough Community College Post Office Box 31127 Tampa, Florida 33631
The Issue Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the Code. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance requirements that does not meet the level of a high priority or intermediate violation. Count 1 Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections. Counts 2 and 3 The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection. Count 5 The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor to the shelves. The assertion was not supported by credible evidence. Count 6 The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code. Count 9 (Part A) The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation. Counts 10 and 12 The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees." During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink. Count 10 identified the hot water deficiency as an intermediate violation. Count 12 classified the accessibility deficiency as an intermediate violation. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection. Count 11 The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device was present. This deficiency was classified as a high priority violation. Count 13 The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation. Count 15 The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.
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 imposing a fine of $6,900 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of April, 2014.
Findings Of Fact Respondent, ACLF, was inspected May 5, 1985, and some 29 Class III deficiencies were noted and a schedule of correction was established to have these deficiencies corrected by June 6, 1985. At a follow-up visit July 11, 1985, some 19 of these deficiencies had been corrected while 10 remained uncorrected. As a result of failure to timely correct these deficiencies Respondent was assessed a $1000 fine which was paid. A subsequent inspection of Respondent's facility was conducted on February 3, 1986, with the following previously reported violations uncorrected: No personnel policies and work assignments. No written work schedule for employees. No assurance staff trained in providing personal hygiene care. Written job descriptions not available for review. Employees not furnished written policies governing conditions of employment. Strong urine odor in rear bedroom. Additionally, eight new Class III deficiencies were noted with four classified as food service standards, three physical plant standards and one fire safety standard. Respondent submitted a schedule to correct these deficiencies (Exh. 3) indicating all deficiencies corrected prior to 2/27/86. No reinspection has been conducted by Petition to confirm these Class III deficiencies have been corrected. New discrepancies noted on February 3, 1986, included menu not posted where it could easily be seen by residents, menu not corrected as served, oven door broken off, potentially hazardous food at room temperature in kitchen, screen on front door torn, clothes closet door off track, vanity in bedroom had part of facing missing, exposed wiring in living room area, shower head missing in one bathroom, and two ceiling fans serviced by extension cord wiring. The menu was posted on the side of the refrigerator where it had been kept for three years and was readily visible to residents. Respondent testified the menu was corrected as served on the back of the menu, but the inspector contended such corrections must be on a separate paper. This testimony was not rebutted. The inspection on February 3, 1986, occurred shortly after the breakfast meal was served and all of the food had not been replaced in the refrigerator. This included one can of fruit that was the subject of this discrepancy. No inquiry was made as to how or when the screen was torn on the front door. Exhibit 3 indicates the deficiency was repaired February 10, 1986. All of these discrepancies were corrected by February 21, 1986 (Exh. 3). All discrepancies at any inspection relating to fire safety were timely corrected by Respondent. Respondent facility is operated by Mrs. Gilpin, her husband and adult daughter, who comprise the employees of the facility. Each testified that he/she has all of the certifications required to work in an ACLF and that each job description was included in the daily work schedule that was posted. It appears from the testimony that at times other employees have been utilized and Ms. Gilpin stated they fill out time cards showing time they commenced and stopped work and that their work schedule is included in the cleaning schedule they carry out. Respondent explained the strong urine odor as coming from the room occupied by a patient with a urostomy early in the morning before the room was cleaned. The death of this person subsequently solved the odor problem.
The Issue The issue in this case is whether Florida Administrative Code Rule 65C-22.010(2)(e)2.a. constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a Florida corporation licensed by the Department to operate a child care facility at 11101 Southwest 184th Street, Miami, Florida. The Department is responsible for the licensure and regulation of child care facilities pursuant to sections 402.305 and 402.310, Florida Statutes. The Department is an "agency" for the purposes of the Administrative Procedure Act. § 120.52(1)(a), Fla. Stat.; Dep't of Child. & Fam. Servs. v. I.B., 891 So. 2d 1168, 1173 (Fla. 1st DCA 2005)("[T]he Administrative Procedure Act applies to DCFS, no less than to every other 'state department, and each departmental unit.'"). Background On or about August 6, 2014, a Department employee conducted an inspection of Petitioner's child care facility. Thereafter, on August 16, 2014, Petitioner received from the Department two formal warning letters. In addition to listing Petitioner's business name, address, and license number, each warning letter included the following language at the top of the page: This serves as a formal Administrative Warning that the next violation of a licensing standard outlined in this notice, will result in an administrative fine. The Department is authorized to impose administrative fines as provided in section 402.310, Florida Statute[s], 65C-20.012 or 65C-22.010, Florida Administrative Code. (emphasis added). Although the reference to a "next violation" plainly indicated that the Department had made conclusive findings——as opposed to allegations——of wrongdoing, any ambiguity on that point was dispelled by the "Violation Standard" sections of the warning letters. Indeed, the definitive-sounding verbiage of those sections, which is quoted below, found Petitioner in violation of numerous "Class II" standards: Ratio Sufficient rule 65C-22.001(4)(a)(b) & 402.305(4), F.A.C. Class 2, A ratio of (2) staff for (8) children is required. There were (2) staff for (22) children observed. Supervision rule 65C-22.001(5)(a)-(d), 65C- 22.001(6)(f), 65C-22.002(4)(c)2. & 65C-22.007(2), F.A.C. Class 2, Direct supervision of children in the (mixed) group was inadequate in that (there were 22 children left alone with 2 teachers). Child Discipline rule 65C-22.001(8)(a)(b), F.A.C. & 402.305(12), F.S. Class 2, The facility's discipline practice included the use of spanking or other form of physical punishment. Facility Environment rule 65C- 22.002(1)(a)(b) & (7)(e)(f), F.A.C. Class 2, An area of the facility was observed to be a serious health hazard to children in care. Class 2, Furnishings, equipment or plumbing were not clean and maintained in good repair, which pose a threat to the health, safety, or well-being of the children in care. Class 2, Fire hazard, such as, (gasoline canister being improperly stored), was observed in the facility. * * * Supplies Labeled/Stored rule 65C- 22.002(1)(f), F.A.C. Class 2, The storage of potentially harmful items such as knives and/or sharp tools allowed access by children in care. Fencing rule 65C-22.002(4)(d)(e), F.A.C. Class 2, The facility's outdoor play space was not enclosed with fencing or walls a minimum of 4 feet in height. Food Preparation Area 65C-22.002(8), F.A.C. Class 2, Staff working with food did not use gloves or utensils while working with food to limit the direct contact with food. Access/Child Abuse or Neglect/Misrepresentation ss. 402.319, F.S. & rule 65C-22.001(9), (11), F.A.C. Class 2, The owner, operator, employee or substitute failed to grant access to the child care facility during the hours of operation to the licensing authority or parent/legal guardian. (emphasis in original). These findings, which the Department concedes are available to the public,3/ did not sit well with Petitioner, who, undeterred by the absence of any language in the warning letters offering a point of entry into the administrative process, filed a "Petition for Hearing Involving Disputed Issues of Material Fact." The hearing request, which the Department received on September 8, 2014, disputed most, if not all, of the findings contained in the warnings. In addition, Petitioner alleged in its hearing request that the warning letters affected its substantial interests in that: [T]he imposition of an Administrative Warning constitutes a disciplinary action which can ultimately affect Petitioner's licensure when such administrative warnings are accumulated . . . and can affect the professional and business reputation of Petitioner. Thereafter, in an Order to Show Cause dated September 26, 2014, the Department's deputy general counsel opined that a "Notice of Administrative Warning regarding Class II violations is a pre-disciplinary 'technical support' violation of licensing standards . . . and not a disciplinary action triggering the application of Chapter 120, Florida Statutes." Consistent with this view, the Order to Show Cause directed the Petitioner to demonstrate why its request for hearing should not be dismissed. Thereafter, on October 28, 2014, the Department issued a final order dismissing Petitioner's formal hearing request. Instant Litigation Eschewing an appeal of the Department's final order, Petitioner instead brought the instant proceeding pursuant to section 120.56(1)(a), Florida Statutes. Refined to its bare essence, the Amended Petition alleges that the issuance of a formal warning letter for a first violation of a Class II standard affects a licensee's substantial interests, thereby obligating the Department to offer a timely point of entry into the administrative process; that rule 65C-22.010(2)(e)2.a. operates to deny such an offer; and that the rule constitutes an invalid exercise of delegated legislative authority. Before analyzing these questions, it is first necessary to address several preliminary issues, including standing and the burden of proof.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2010), by discriminating against Petitioner on the basis of race, color, or sex, and if so, what remedy should be ordered.
Findings Of Fact Lowe's Home Centers, Inc. (Lowe's) is a retail sales corporation that does business in Florida and employs over 15 employees. Melissa Drayton, Petitioner in this case, is an African-American woman who began working for Respondent as a part-time cashier in February of 2008. At the time she was hired, Petitioner was made aware of Lowe's policies prohibiting discrimination and various methods to report it, including direct communications to management, to human resources personnel, through a toll-free telephone line, and through a website. Petitioner worked for the Respondent in a part-time capacity for a period of approximately two years without any "write-ups" or disciplinary action of any kind. Petitioner received positive "star development" performance reviews between 2008 and 2010, and received pay increases. At some point between 2008 and 2010, Petitioner also received a "corporate compliment" for excellent performance. Petitioner submitted a "request for consideration" form asking to be transferred from cashier to a sales position in home décor or other department in the store. Petitioner talked with Mr. Lee Walker, the Store Manager, about her desire to move to the home décor department. Mr. Walker told Petitioner that he would "give her the opportunity providing we followed the steps and went from there." At a meeting with Petitioner present, Mr. Walker told the Assistant Manager responsible for the paint and home décor department that Petitioner would soon be moving to home décor. At a later point, Mr. Walker told Petitioner that Lowe's was shorthanded at the front of the store and that they needed to keep her up front. He told her that provided they got everything filled in time, they could get her moved over. On April 6, 2010, Petitioner was advised by Ms. Benjamin, the Human Resources Manager at the store throughout the time of Petitioner's employment, that Petitioner was not on the schedule to be transferred to home décor, but would remain a cashier. Ms. Benjamin explained to Petitioner that Lowe's was short on cashiers. Ms. Benjamin testified that Petitioner was then very upset when she went out on to the floor. Almost immediately thereafter, Petitioner displayed rude and unfriendly behavior to a customer. On April 13, 2010, Respondent "wrote up" Petitioner for the incident by preparing an unfavorable Employee Performance Report with the "initial" block checked. The report was prepared based upon Respondent's belief that on April 6, with unloaded items at her register which she had begun to ring up, Petitioner suddenly said, "I can't do this" and just walked away, leaving the customer standing at the register. Petitioner was given an opportunity to make written comments. Petitioner wrote: The day of the Report I told Linda I needed to go to the back. I went to the back, and Sally came into the bathroom and I told her I needed to go home because I can't perform today. She would not let me go home. On back. I do not try to bring my personal issues at work, at that point and time I became overwhelmed and was not able to perform as I usually do. Was not allowed to leave by my supervisor Sally due to her concern for me. Petitioner testified at hearing that there was a page missing from this document, on which Petitioner had described issues she was having with management. This testimony is not credible. At the end of the comment block on the first page, Petitioner indicated "on back." The back page writing begins at the top of the page, continues the same topic begun on the first page, and ends with ample space remaining. It is not reasonable to conclude that Petitioner submitted an additional page on a different topic into the middle of her other narrative or would have begun a new page without first using up the available space on the back of the form. Ms. Benjamin also testified that there were no missing pages to the report, testimony which is credited. Petitioner also testified at one point during the hearing that the write-ups started shortly after she began complaining about issues that she was having with her employment. She testified at another point that she began complaining about these issues as soon as she started working at Lowe's in 2008. Yet the evidence clearly indicates that Petitioner had no write-ups for a period in excess of two years, because her first write-up did not occur until April 6, 2010. Therefore both of Petitioner's statements cannot be true. Petitioner's testimony suggesting that the write-ups occurred as a response by Lowe's to her complaints about several management issues is rejected as not credible. Petitioner's testimony that she had no write-ups for two years and that the first write-up occurred on the same day that she learned she was not scheduled to be moved to home décor is much more credible, is corroborated by the testimony of Ms. Benjamin, is further corroborated by Lowe's employee records, and is accepted as true. Ms. Benjamin testified she could not recall any complaints or issues from Petitioner related to race, color, or gender. She testified that Petitioner never came to Human Resources to complain about discrimination. Ms. Benjamin also stated she was unaware of any complaints of discrimination that had been filed through the toll-free number and that she would have been aware if complaints had been filed. Ms. Benjamin testified that although complaints filed on the website about the store were anonymous, to her knowledge no "ethics points" calls regarding the store had ever been filed by any person during the period of Petitioner's employment. She testified that had Petitioner made any complaints to her, they would have been investigated. Ms. Benjamin was credible and her testimony on these points is accepted. Petitioner testified that she complained to Lowe's about numerous issues. She testified that she saw individuals "hired off the street" who were white or Hispanic that were put into some sales positions, but that despite Mr. Walker's promise, she was not transferred to a sales position, but remained a cashier. She stated she had been called "nigger" by customers, while conceding that no employee ever used any derogatory racial slur towards her. She also stated that she had been "cussed out" by different employees. She had several concerns about the way the cashiers were managed. In particular, she felt some senior employees took more breaks than regular employees were allowed to take. Others were permitted to take longer breaks, lasting 20 to 30 minutes, rather than only 15 minutes. Petitioner testified that one employee named "Vanessa," whose last name was unknown, was particularly likely to take long breaks and was "allowed to do whatever she wanted" by Lowe's. There was no evidence presented as to whether Vanessa was ever disciplined or was ever moved to a sales position. The derogatory comments relating to race made by customers were abusive and were demeaning to Petitioner. The instances in which customers used racial epithets were isolated events, however. Petitioner discussed her concerns about the way the cashiers were managed with her supervisor, Ms. Sally Deckle, but no changes were made. Petitioner became frustrated and felt that despite Lowe's "open door" policies, her concerns were ignored. She believed that Lowe's failed to work with the employees that worked there. When Petitioner stated to Ms. Deckel that the management at Lowe's was "hypocritical," Petitioner testified that Ms. Deckel told Petitioner to "kiss my ass" or words to that effect. Petitioner testified that she went to the Assistant Store Manager in charge of the cashiers, Ms. Kelly Young, and subsequently to the store manager, Mr. Lee Walker, about Ms. Deckle's use of profanity. Petitioner testified that Mr. Walker only "rolled his eyes" in response and that no action was ever taken. Mr. Walker did not remember this complaint. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race, color or gender based upon Lowe's failure to respond to Petitioner's complaints. Around the time of Petitioner's first adverse Employee Performance Report in April, Lowe's changed the process for an employee to request placement in a new position. The form that had previously been used was discontinued, and was no longer used. Under the new system, available positions were posted on the website, and employees would apply online. Employees were informed of the new system though postings in the break room, discussions in morning meetings, articles in the newsletter, and the information on the website itself. Petitioner knew or should have known of the new procedures. Petitioner never applied to be moved to a sales position through the new system. On June 5, 2010, Petitioner failed to deactivate an alarm on one of the items she rang up, because she claimed she was too tired to lift the box. On June 6, 2010, Respondent received a complaint from a customer who had accidently processed the wrong form of payment by using a credit card when he wanted to use a debit card, or vice versa. The complaint stated that Petitioner was rude and unfriendly to the customer and refused to help him correct his mistake. On June 7, 2010, Petitioner displayed uncooperative behavior towards co-workers while she was working returns and waiting for her relief. She also refused to do a refund for a customer, stating she did not have enough money in her register, although she had $600. Respondent did not discuss these incidents with Petitioner at the time they occurred. A second unfavorable Employee Performance Report was prepared on June 12, 2010, with the "written" block checked, that documented these incidents, which was the first time Respondent confronted Petitioner regarding the incidents. Petitioner was given an opportunity to make written comments. Petitioner wrote. "I'm tired of all the issues that's going on up front as a front end cashier. Issues need to be addressed." On September 24, 2010, Petitioner received an Employee Performance Report with the "written" block checked, for poor attendance. Again, as was the practice with all "write-ups" given to Petitioner in this case, the incidents were not discussed with Petitioner at the time they occurred, but only at the time of the report. The report noted Petitioner had been called in six times since February. Petitioner made no written comments on this report. On December 24, 2010, Petitioner received an Employee Performance Report with the "final notice" block checked for refusing to cover the return desk as requested by a head cashier to allow another employee to take a restroom break. Petitioner refused because she was scheduled to leave at 3:00 p.m. and the request was made ten minutes before this time. Mr. Walker testified that he always personally advises employees at a "final warning" that their employment at Lowe's is subject to termination if there are any further policy violations. Mr. Walker testified he personally made this quite clear to Petitioner. Petitioner made no comments on the report. On February 2, 2011, a customer approached Petitioner's cash register asking her to check a price. Petitioner told the customer that she could not check the price because she had to go, and instructed the customer to go to another associate. On February 4, 2011, a customer came to Petitioner's register to check out. The customer had several nuts and bolts and Petitioner sent the customer back to the department to get the item numbers instead of looking them up in the book. An Employee Performance Report with the "termination" block checked was prepared on February 11, 2011, documenting these incidents. Petitioner was given an opportunity to make written comments. Petitioner wrote: 2-2-11 New cashier Fern was assisting customers. I helped her get her line down. Also, it was the end of my shift. After this were no more customers. I clock out and went to put vest in locker the usual. Did not do or say anything to offend customers. 2-4-11 Customer got in line said he didn't see item numbers for the bolts. I responded in friendly voice all the bolts and washers have item numbers. I said there is always someone to assist you said nicely before I can get booked to scan he walked away. For nothing, I did nothing, I said nothing wrong to customer. I do not recall this complaint with this customer 2-2-11. I thought I had already had clocked out. That would be the only way I turned a customer away if I had clocked out. This problem I do not recall. I have been doing more customer focus. I do not understand these ongoing complaints. I'm not stressed or angry or having a bad day. I try to stay customer focused with every customer. Everyone that works around me knows I do customer focus with every customer. I do not put my foot in my mouth at work. I know how these customers are, so I do not try to do anything to set them off. I have to try a good day at work. All I try my best to do is customer focus. All employees that work around me knows I'm never mean or nasty to a customer. The customers some of them are very edgie people so why would I do or say anything to set them off or make them complain. I'm not perfect but I know I work customer focus ethics when I'm scheduled to work. Every time I got talked to by upper management about a customer complaint I looked at what they said I did wrong and use that as improvement for better customer service and focus and ethics. Petitioner was terminated from employment at Lowe's by Mr. Walker. He advised Petitioner that she was being terminated because of too many customer complaints. Petitioner was polite, shook Mr. Walker's hand, and departed. Petitioner did not say anything about race discrimination, color discrimination, or gender discrimination at the termination meeting. Petitioner later talked with Ms. Jenkins of the NAACP. Petitioner testified that Ms. Jenkins wrote, and Petitioner signed, an undated letter to Lowe's Regional Human Resources office in North Carolina. The letter complained that Petitioner had been discharged unfairly. It did not assert any discrimination on the basis of race, color, or gender. This letter was written sometime in April of 2011. Mr. Sloan Wilson, Lowe's Regional Human Resources Director, wrote a letter to Petitioner on May 26, 2011, offering Petitioner a cashier position in another store. Petitioner declined this offer. Petitioner filed charges of discrimination with the Florida Commission on Human Relations in June, 2011. She testified that she had been talking to an attorney and was given a packet to fill out. Petitioner stated that the charges of discrimination on race, color, and sex came about because Petitioner didn't know which one on the packet to properly fill out. Mr. Walker was "pretty shocked" when he learned that Petitioner had charged Lowe's with discrimination on the grounds of race, color, and sex. He had talked with Petitioner on numerous occasions and there had been no discussion or complaints to him about any discrimination. He was unaware that Petitioner had had such discussions with anyone in the store. He testified that he would have confronted any customer who used a racial epithet and walked them out of the store. On October 12, 2011, Petitioner filed a Petition for Relief against Respondent for an unlawful employment practice, which was referred to the Division of Administrative Hearings the same day.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 27th day of January, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 27th day of January, 2012. COPIES FURNISHED: Melissa Drayton 1421 Southwest 27th Avenue No. 2106 Gainesville, Florida 34471 Charles E. Williams, Esquire Constangy, Brooks and Smith LLP 100 North Tampa Street, Suite 3350 Tampa, Florida 33601 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
