The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of August, 2013.
The Issue The issue for determination is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2331004. At all times material hereto, the Restaurant was located at 2298 Northwest 36th Street, Miami, Florida 33142. A critical violation in food service is considered to be a violation that is directly related to a food-borne illness risk and could cause the threat of health and sanitation issues; or any violation that, if left uncorrected, could lead to food being contaminated and may cause a food-borne illness or cause someone to become sick or harmed. On March 17, 2009, Mohammad Khan, a senior sanitation safety specialist with the Department, conducted an inspection of the Restaurant. Another inspector with the Department, Maurice Chi, a sanitation safety supervisor, arrived at the Restaurant after Mr. Khan and accompanied Mr. Khan during the inspection. During the inspection, among other things, Mr. Khan and Mr. Chi found a violation, which they considered to be a critical violation. Further, during the inspection, Mr. Khan prepared a food inspection report, setting forth the alleged critical violation. The inspection report was signed by Mr. Khan, Mr. Chi, and Eva Alvarado, the manager of the Restaurant. Mr. Khan made Ms. Alvarado aware of the alleged critical violation, in addition to other violations, and provided her with a copy of the inspection report. The inspection on March 17, 2009, involved a possible immediate closure of the Restaurant due to the alleged critical violation. The alleged critical violation on March 17, 2009, was 35A-04-1:2 “Observed rodent activity as evidenced by rodent droppings found found [sic] 70 plus fresh rodent droppings in kitchen behind chext [sic] type freezer.” Mr. Khan moved the freezer, observed the area behind it, and observed approximately 70 fresh rodent droppings. Mr. Chi also observed the fresh rodent droppings. Mr. Khan and Mr. Chi considered this alleged violation to be a critical violation because the fresh rodent droppings are directly related to food-borne illness in that rodents carry a lot of germs and diseases and they could contaminate food and preparation areas, causing significant health issues for anyone eating in the Restaurant. Their testimony is found to be credible and clear and convincing. The Restaurant was closed on March 17, 2009, as a result of the critical violation being found. The next day, March 18, 2009, the Restaurant was re- inspected. The critical violation had been corrected, and the Restaurant was allowed to re-open. Ms. Alvarado testified, among other things, that the Restaurant had fumigation performed every 15 days. Her testimony does not negate what was found during the inspection on March 17, 2009, and the critical violation found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Restaurant El Hondureno II violated Food Code Rule 6-501.111. Imposing an administrative fine in the amount of $1,000.00 against Restaurant El Hondureno II. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2009.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of May, 2013.
The Issue The issues are whether Respondent is guilty of employment discrimination, based on age or marital status, in violation of the Florida Civil Rights Act of 1992 and, if so, what relief is appropriate.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner was born in 1940 or 1941. He has a high school education, and he has obtained some credits toward an associate’s degree in computer science/business management. Petitioner is married, but his children are grown and no longer living at home. Petitioner worked for 30 years with a large manufacturer, which reduced its workforce and terminated him. Shortly prior to moving to Florida in 1993, Petitioner worked for two and one-half years with the fish and game division of the Enfield, Connecticut, police department, enforcing fishing and hunting laws and dealing with animals. In April 1994, Petitioner applied with Respondent for the position of animal control officer. In May 1994, Keith Larson, Director of Animal Control, telephoned Petitioner and scheduled an interview for the following week. During this telephone call, Mr. Larson and Petitioner briefly discussed his animal control experience with the Enfield police department. Mr. Larson said that Petitioner sounded like a good candidate, and Petitioner felt that he had a good chance to get the job. During the interview, which took place on May 27, 1994, Mr. Larson asked Petitioner, “Do you really think you can get through the animal control course at this time of your life?” Petitioner replied in the affirmative. Mr. Larson also asked Respondent if he were married and if his wife would mind him working the “crazy hours” required of an animal control officer because wives sometimes caused problems. Petitioner assured him that his wife would present no problems. At the time, Petitioner has been working as a Wells Fargo security officer at the courthouse. A few days after his interview, he learned from a deputy that Mr. Larson had hired someone else for the animal control position. Shortly after learning that Mr. Larson had not chosen him for the job, Petitioner complained to Ms. Linda Skelton, presently Respondent’s Human Resources Manager and then one of Respondent’s Employee Relations Supervisors. Petitioner complained about the questions that Mr. Larson had asked during the interview. Ms. Skelton conducted an investigation, which consisted entirely of talking to Mr. Larson, who denied making any of the statements. Ms. Skelton then informed Petitioner that she had found no evidence of discrimination, but referred him to the Florida Commission on Human Relations and Equal Employment Opportunity Commission, if he wished to pursue the matter further. She encouraged Petitioner to reapply for an animal control position and promised a fair interview if he did. Choosing not to pursue legal relief, Petitioner reapplied for an animal control position four more times in the year following the unsuccessful initial application. On the first three reapplications, Mr. Larson declined to offer Petitioner an interview. On the fourth reapplication, Mr. Larson granted Petitioner another interview. On Petitioner’s fourth reapplication, Mr. Larson, in consultation with Ms. Skelton, arranged for a panel of County employees to interview candidates. The panel consisted of two firefighters, who were not familiar with the duties of animal control officers, and an animal control officer. Mr. Larson did not speak to any of the three panelists about their deliberations, so as to isolate himself from the selection process. However, the panelists knew Mr. Larson had formed the panel due to Petitioner’s earlier complaint about age and marital discrimination. The panel conducted its interviews in May 1995. The panelists were not particularly well-prepared to conduct interviews. The most prominent shortcoming emerged when one of the firefighters asked Petitioner’s brother, who was also interviewing for the animal control position, who was older-- Petitioner or his brother. The panelists did not take notes during the interviews. They administered a short written test to each applicant; during Petitioner’s test, one panelist continued to talk to him. Petitioner took offense at this distraction, as well as the waste of time spent on a discussion of Petitioner’s martial arts background. Given the simplicity of the test, the distraction was harmless, as was the discussion of martial arts. The deficiencies of the panel are attributable to the unsuitability of the panelists for their task; this was the first time that the panelists had interviewed applicants for an animal control position. After considering all of the applicants, the panelists recommended that Mr. Larson not hire any of the applicants, but instead try to obtain new applicants for the opening. Mr. Larson accepted this recommendation and readvertised the position. Petitioner did not apply for this or any subsequent animal control opening. After conducting another round of interviews, the panelists recommended that Mr. Larson hire Catherine Katzman. Mr. Larson did so. This was the last time that Mr. Larson used the panel to interview applicants for an animal control position. Petitioner’s career and education have had almost nothing to do with animal control. Although the record is not particularly well-developed on these points, it does not appear that much of the animal control officer’s duties in Charlotte County involve undomesticated animals, and it does not appear that much of Petitioner’s duties in the fish and game division of the Enfield police department involved domesticated animals. The job description for the animal control position calls for someone to apprehend animals and enforce the County’s animal control ordinances. The educational and physical demands are modest: graduation from a high school or vocational school with “some animal contact work experience” and “moderate physical activity.” The job description notes that the position requires knowledge of animal control procedures, relevant local law, and the geography of Charlotte County, as well as an ability to work with the public. Petitioner is qualified for each animal control position that Mr. Larson sought to fill. However, Petitioner’s qualifications are minimal and easily bettered by other applicants. Following the May 1994 interview, Mr. Larson hired William Pahl, who was in his 20s, married, and the father of at least two young children. Mr. Pahl had already earned his animal control certificate and had worked for two years as an animal control officer in Lee County. Mr. Pahl was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was Charles Owensby, who had a high school degree and was in his 40s. Mr. Owensby had already earned his animal control certificate and had worked for three years as an animal control officer in Lee County, ten months as a veterinary technician, and 15 years as a dog trainer. Mr. Owensby was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was James Wilcox. Mr. Wilcox had no prior experience in animal control. He was in his mid 20s. Mr. Larson based his decision to hire Mr. Wilcox on his ability to mold him into an ideal animal control officer. The record does not reveal if a factor other than youth contributed to Mr. Larson’s determination that Mr. Wilcox could be molded into the ideal animal control officer. Mr. Wilcox had only a high school education and his work experience was unimpressive, consisting of grocery store clerk (five months), outdoor furniture assembler (11 months), short-order cook and handyman at restaurant (five months), lawn maintenance (seven months), and--most recently--handyman at a resort (10 months). Again, the record is not particularly well- developed, but Mr. Larson promoted Mr. Wilcox to Animal Control Supervisor at some point, presumably due to Mr. Wilcox’s good work. Mr. Wilcox left the Animal Control Department after two or three years to join the Charlotte County Fire Department. Mr. Wilcox was not as qualified as Petitioner for the animal control position. Petitioner had some tangentially relevant experience; Mr. Wilcox had none. Petitioner had an impressive employment history; Mr. Wilcox did not. The next person whom Mr. Larson hired, rather than Petitioner, was Cheryl Vanande. She had earned a college degree, but had no relevant experience. Ms. Vanande had worked as an energy conservation specialist for a power company (four and one- half years), yellow pages salesperson (nearly two years), and automobile sales and leasing representative (one and one-half years). While serving in the naval reserves, Ms. Vanande had supervised up to 68 persons. Also, her annual earnings had consistently been about $24,000. Ms. Vanande was married and in her 30s. Despite the lack of direct animal control experience, Ms. Vanande was probably more qualified than Petitioner. The last person whom Mr. Larson hired, instead of Petitioner, was Catherine Katzman, whom he hired after the second round of interviews in June 1995. Ms. Katzman had worked for two years at an animal shelter in Charlotte County, where her responsibilities included care for fractious animals. She had also worked for a couple of months as a veterinary technician. Ms. Katzman had earned an associate arts degree and credits in a veterinary medicine major. Ms. Katzman was in her mid 20s and married. She was considerably more qualified than Petitioner. Except for the hiring of Mr. Wilcox, the decisions to employ persons other than Petitioner were entirely justified, based upon qualifications. Ms. Vanande is a closer case, but her college degree and supervisory experience probably rendered her a superior applicant over Petitioner. In each of these cases, then, Mr. Larson’s testimony that his employment decisions were not motivated by unlawful discriminatory intent is supported by the fact that he hired persons more qualified than Petitioner. The decision to employ Mr. Wilcox, rather than Petitioner, cannot be justified based on superior qualifications. On paper, Petitioner was more qualified than Mr. Wilcox for the animal control position. If Mr. Larson had reasons, besides relative youth, to hire Mr. Wilcox, he did not articulate them at the hearing. Mr. Larson’s initial interview with Petitioner is crucial in this case. Displaying an interest in Petitioner’s age and marital status, Mr. Larson revealed the role of these criteria in his hiring decisions. This does not mean that his preferences concerning age and marital status necessarily influenced subsequent decisions. In fact, the record does not establish that any of Mr. Larson’s employment decisions in this case were influenced by marital status. As for age, the superior qualifications of all the other applicants, besides Mr. Wilcox, signifies that it was unnecessary for Mr. Larson, in hiring these four applicants, to reach the issue of age. Each of these four applicants was better qualified than Petitioner to fill the animal control position, so Mr. Larson presumably ended his considerations at this point. But Mr. Wilcox was not as qualified as Petitioner to fill the animal control position. The reasonable inference is that, in hiring Mr. Wilcox over Petitioner, Mr. Larson gave effect to the discriminatory concerns, earlier expressed during the initial interview, concerning Petitioner’s age. Specifically, solely on the basis of age, Mr. Larson doubted that Petitioner was sufficiently adaptable to acquire the skills needed for the animal control position; solely on the basis of age, Mr. Larson expected that Mr. Wilcox was sufficiently adaptable--moldable--to acquire the skills for the animal control position. Mr. Wilcox’s application bears a date of receipt of February 16, 1995. It is safe to assume that Respondent received Mr. Wilcox’s application prior to the date on which Mr. Larson hired Mr. Wilcox. Petitioner filed his Charge of Discrimination on November 21, 1995. Clearly, then, Petitioner filed his Charge of Discrimination within one year of the sole act of discrimination proved in this case. Although Petitioner relies upon evidence dating from earlier than November 21, 1994, to establish an act of age discrimination, the act of age discrimination did not take place until early 1995. Petitioner’s proof of emotional suffering is too vague and uncertain to permit an award. This claim is rejected. Petitioner’s proof of lost earnings and associated benefits is more definite, but somewhat unclear. Petitioner would have initially earned $8.12 hourly as an animal control officer, which required 40 hours weekly. Six years have elapsed since the approximate date of hire of Mr. Wilcox. The record suggests that Petitioner would have retired in 2002. It is not entirely clear when Petitioner has held various jobs since March 1, 1995. At one point, Petitioner worked for Wells Fargo at $5.15 hourly. Then, he worked at the Charlotte County courthouse at $5.75 hourly and later earned $7.00 hourly. At some point, Petitioner worked at the clerk’s office at the courthouse and earned $6.50 hourly, but was employed only 30 hours weekly. The parties should try to settle upon a specific amount representing the value of lost earnings and associated benefits, when comparing the animal control job to Petitioner’s actual employment, from March 1, 1995 (or, if available, the date of hire of Mr. Wilcox) through his age of retirement, as noted in Petitioner’s proposed recommended order, in 2002. Likewise, the parties should try to settle upon attorneys’ fees and costs. If unable to reach a settlement, the parties should request the Florida Commission on Human Relations to remand the case again to the Division of Administrative Hearings for the purpose of conducting an evidentiary hearing on the issue of the precise relief to which Petitioner is entitled.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations: Enter a final order dismissing Petitioner’s Petition for Relief on the ground that it is time-barred. If the Commission elects not to dismiss the Petition for Relief, enter a final order determining that Petitioner has proved that Respondent committed a single act of age discrimination in the decision to hire Mr. Wilcox on or about March 1, 1995, as an animal control officer. If the Commission enters a final order determining that Respondent has committed the act of discrimination described in the preceding paragraph, enter a final order giving the parties a reasonable period of time to settle Petitioner’s claims, other than emotional suffering, and, if they fail to do so, enter an order remanding the case to the Division of Administrative Hearings to conduct an evidentiary hearing solely on the issue of the relief to which Petitioner is entitled. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 13th day of March, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy L. Sergent Lancaster & Eure, P.A. 711 North Washington Boulevard Sarasota, Florida 34236 Brendan Bradley Deputy County Attorney Charlotte County Administration Center 18500 Murdock Circle Port Charlotte, Florida 33948-1094
