Findings Of Fact On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent. RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980. COPIES FURNISHED: Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 91 West Broward Boulevard Fort Lauderdale, Florida 33301 Ms. Carolyn Rhoades Administrator Monticello Manor 1701 North Federal Highway Fort Lauderdale, Florida 33308 Steven W. Huss, Esquire Staff Attorney Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated provisions of the Food Code and, if so, what penalties should be imposed.
Findings Of Fact The Division is responsible for monitoring all places of public food service and preparation in the state. It is the Division's duty to ensure that all public eating establishments comply with the standards set forth in relevant statutes and rules. Steagles, LLC, operates a food establishment located at 1395 Cypress Avenue, No. C, Melbourne, Florida. For purposes of this Recommended Order, the establishment will be referred to as “Steagles.” On January 30, 2012, at 11:10 a.m., the Division conducted an unannounced health and safety inspection of Steagles. A number of violations, both critical and non- critical, were found. Critical violations are those which are likely to lead to food-borne illnesses; non-critical violations are those which are not as likely to lead to such illnesses. At the conclusion of inspection, the Division notified Respondent that a “callback” inspection would be performed on March 29, 2012, at 8:00 a.m., and that all the violations were to be corrected by that time. On the specified date, but at 1:26 p.m., the callback inspection was conducted at Steagles. The callback inspection resulted in a finding of three critical violations and four non-critical violations which had not been corrected since the initial inspection. The critical violations found during the callback inspection were as follows: 31-09-1 The sink used by employees to wash their hands was blocked by a bucket of towels. 22-81-1 The interior of a microwave was heavily soiled; the interior of a reach-in cooler was heavily soiled; and, there was heavy encrusted material on a can opener. 32-04-1 The restroom doors did not have self-closing devices attached to them, nor did the trash receptacles have lids. The non-critical violations found during the callback inspection included the following: 14-35-1 Cardboard was being used as a shelf liner; a cutting board was badly scored. 15-35-1 A wooden shelf did not have sealant on it. 37-06-1 Walls were heavily soiled with grease. 38-07-1 There were no shields or caps on some of the lighting fixtures. The storage of towels or other items in the sink used for washing hands could lead to cross-contamination which could lead to food-borne illness. The soiled microwave, can opener, and reach-in cooler could lead to bacterial growth and could cause physical contamination of food. The absence of self-closing doors and lids on restroom trash cans could result in the attraction and harborage of insects and rodents. The non-critical violations, though less serious, could result in bacterial growth, the attraction of rodents, or other problems. The conditions found during the inspection were attested to at final hearing by the inspector who made the observations. Respondent did not rebut or disprove any of the alleged violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine in the amount of $1,350.00, to be paid by Respondent, Steagles, LLC, within 30 days of the entry of a Final Order in this matter. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 December, 2012. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Michael J. Patrick Steagles, LLC No. 6 1395 Cypress Avenue Melbourne, Florida 32935 William L. Leach, Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Petitioner has just cause to terminate Respondent.
Findings Of Fact The City is a municipality located in Pinellas County, Florida. Alexander was hired by the City on October 7, 2002, as a Service Worker in the Sanitation Division of the Public Works Department. He was a backup sanitation driver, working on residential collection routes. Grover Smith (Smith), the City's Sanitation Supervisor, supervises 17 employees, including Alexander. He is responsible for the daily operations of the collection of solid waste by the City's Sanitation Division. Smith has worked for the City as a sanitation supervisor for five years and was employed in the City's Sanitation Department for 17 years prior to becoming a supervisor. His work experience includes driving a sanitation truck and being a crew leader in the Sanitation Division. As an employee of the City, Alexander was subject to the City's Code of Conduct, which lists different groups of offenses for which City employees may be disciplined. The City's Code of conduct lists the following offense as a Group I offense: Tardiness, as defined as reporting late for work, overextending breaks or meal periods within one year of the first occurrence. Occurrences of tardiness shall only be considered for a year in applying progressive discipline. When determining the proper discipline go back only one year from the most recent occurrence and follow the progression of discipline as indicated. (Guide for determining tardiness: three times in any thirty (30) calendar day period, or six (6) times in any ninety (90) calendar day period or a continuous pattern of tardiness. From May 12, 2003, through June 6, 2003, Alexander was tardy to work four times. On June 10, 2003, Smith issued a verbal warning to Alexander for his tardiness. During November 2003, Alexander was tardy ten times. Smith issued Alexander a written warning on November 26, 2003, for his tardiness. Alexander was warned that any further violations would result in progressive disciplinary action up to and including termination. The City's Code of Conduct provides that "[f]ailure to immediately report an accident or injury in which the employee is involved in while on the job" is a Group II offense for which a City employee may be disciplined. On December 9, 2003, Alexander struck a pine tree in a trailer park while driving a sanitation truck. Alexander did not immediately report the accident. Smith learned of the accident from another employee on December 9, 2003. Smith questioned Alexander the same day about the accident, and Alexander denied hitting the tree. The next day Smith investigated the incident and found evidence that a pine tree in the trailer park had been struck and that there were remnants of the pine tree on the bumper of the right side of the sanitation truck that Alexander had been driving. Smith again questioned Alexander, who continued to deny that he hit the tree. Only after two other employees who had been working with Alexander on the day of the accident admitted that the truck had struck the tree did Alexander admit that he had hit the pine tree. On December 16, 2003, Smith issued Alexander a written warning for failing to immediately report the accident. From February 27, 2004, through March 22, 2004, Alexander was tardy four times. Alexander received a two-day suspension for this offense, which was in accordance with the guidelines of the City's Code of Conduct which provides for a one to three-day suspension for a third Group I offense. The City's Code of Conduct provides that "[n]eglect or carelessness which results in a preventable accident" is a Group I offense for which a City employee may be disciplined. On May 20, 2004, Alexander, while driving a City sanitation truck, made a left turn and failed to swing wide enough, striking a series of mailboxes. The following day Alexander had another accident when he was backing a City sanitation truck down the street in a mobile home park and struck an awning on a mobile home. Both of these accidents occurred on the driver's side of the vehicle and could have been avoided if Alexander had been paying attention. The City's Code of Conduct provides that a City employee may be discharged for a Group IV offense, which includes the following: Chronic offender of the Code of Conduct. (Guide: four (4) violations of any departmental or City rule or regulation in an eighteen (18) month period which results in a Verbal Warning or other disciplinary action (effective upon adoption of the revised Personnel Rules). Smith recommended to Kurt Peters (Peters), the Director of Public Works for the City, that Alexander be suspended for five days. Peters consulted the City's Personnel Director, Bill Cropsey (Cropsey). Cropsey determined that Alexander was a chronic offender and could be discharged. On June 9, 2004, Cropsey sent Alexander a letter advising him that he was in violation of the City's Code of Conduct as a chronic offender of the Code of Conduct and that a pre-disciplinary hearing was scheduled for June 14, 2004. Alexander was placed on administrative leave with pay, pending the pre-disciplinary hearing. The pre-disciplinary hearing was held on June 14, 2004, at which time Cropsey and Peters determined that Alexander should be discharged as a chronic offender. By letter dated June 14, 2004, Cropsey advised Alexander that he was terminated from his employment with the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Christopher Alexander's employment with the City. DONE AND ENTERED this 5th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2004. COPIES FURNISHED: Christopher T. Alexander 6324 150th Avenue, North Clearwater, Florida 33760 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman, Heyman & Jardine, P.A. Post Office Box 15309 Clearwater, Florida 33766 Jeff Bronson, Chairman Personnel Review Board City of Safety Harbor 750 Main Street Safety Harbor, Florida 34695
The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Richard Byers, was a licensed cosmetologist in the State of Florida having been issued license No. CL0155765 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was the manager of Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Blvd. Deerfield Beach, Florida (the "Salon"). A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with Respondent. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During the second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized. Respondent argues that, since he was not working on the day of the second inspection, he should not be charged with any sanitation violations on that day. Respondent contends that he would have cleaned up his work station and sanitized all equipment before beginning work on customers the next day when he returned. However, no adequate explanation was given for the uncleanliness of his work station over the weekend. There is no evidence that any unsanitized equipment was used by Respondent on customers. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store his implements in a clean closed cabinet until used as required by the Board's Rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violating Chapter 477, Florida Statutes and imposing a $50 fine. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991. J. STEPHEN MENTON 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 10th day of July, 1991. COPIES FURNISHED: Mark E. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Richard Byers 9769 N. W. 20th Street Coral Springs, Florida 33071 Richard Byers c/o Today's Hair & Nails 3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442 Myrtle Aase Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. At the time of the formal hearing, Respondent was operating her beauty salon at the Hallandale location. On September 8, 1990, and on February 13, 1991, Leonard Baldwin, an inspector for the Department of Professional Regulation inspected Respondent's shop at 2471 Pembroke Road, Hollywood. Respondent's shop was open for business and was doing business at the time of Mr. Baldwin's visits. Respondent had failed to obtain a license for her beauty salon from Petitioner prior to engaging in business. Respondent does not dispute that she operated her beauty salon in Hollywood without a license for the shop. Respondent testified that she had not secured a salon license for her location in Hollywood because she had only recently come to the United States from Haiti and she had not known that a license was required. Between February 13, 1991, and March 22, 1991, Respondent closed her beauty salon located at 2471 Pembroke Road, Hollywood, and reopened her beauty salon at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. On March 22, 1991, Mr. Baldwin inspected Respondent's beauty salon at the Hallandale address and found several violations of sanitation standards that had been established by rule. At the time of Mr. Baldwin's inspection, the implements for the nail station did not appear to have been sanitized, the equipment on the hair dresser's station was not clean and sanitized, instruments stored in a closed cabinet were not clean and sanitized, and the sanitation rules were not displayed. Respondent denied that her shop failed to meet sanitation standards as related by Mr. Baldwin. The conflict in the testimony is resolved by finding that the greater weight of the evidence establishes the sanitation violations to which Mr. Baldwin testified. It is found that on March 22, 1991, the implements for the nail station had not been sanitized, the equipment on the hair dresser's station was not clean or sanitized, instruments stored in a closed cabinet were not clean or sanitized, and the sanitation rules were not displayed. Respondent promptly corrected all sanitation deficiencies noted by Mr. Baldwin following the inspection of March 22, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered a Final Order be entered that finds the Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint and which assesses against Respondent an administrative fine in the amount of $750.00. DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of July, 1992. Copies furnished: Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre, Suite 60 Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0792 Myrliflore DeJean, pro se 730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009
Findings Of Fact Gerald M. Swindle was employed by the SFWMD on May 15, 1974 as a Water Resource Technician, and remained employed by SFWMD until he was terminated July 25, 1990. In 1977, Petitioner was counseled regarding his performance of duty needing improvement (Exhibit 11). In 1978, Petitioner violated a verbal order not to become involved in enforcement matters with E. N. Willis. This order was reiterated in Exhibit 13 dated October 24, 1978. In 1981, Petitioner was placed on probation which ended November 15, 1981 (Exhibit 15). During this probationary period, SFWMD continued to receive complaints regarding personal use of the district vehicle assigned to Petitioner (Exhibit 15). In his evaluation report dated 11/23/81, Petitioner was given an overall grade of satisfactory, although he was marked slightly below average on 6 of the 11 items on which rated. In 1988, a reorganization changed the job description of Water Resource Technician to Field Service Technician with a higher pay grade. Petitioner was not reclassified into this position when the other Water Resource Technicians were reclassified because his superiors felt he was deficient in some of the skills required of a Field Service Technician (Exhibit 19). By letter dated November 4, 1988 (Exhibit 17), Petitioner was advised of the need to make improvements in reading and interpreting blueprints, site plans and as-builts; in the production of accurate and timely reports; in basic knowledge of district rules; and in effective communication. By memorandum dated March 15, 1989, William Hartman, Petitioner's supervisor, submitted a memorandum to the Director, Bartow Permitting Department, advising that he, and others, had spent time with Petitioner reviewing and interpreting blueprints, as-builts, aerial maps, etc., that Petitioner had attended workshops, and that some improvement was noted. By memorandum dated April 10, 1989 (Exhibit 19), the Director, Bartow Permitting Department, recommended Swindle not be promoted to Field Services Technician II. In 1989, Petitioner was suspended from duty without pay for two weeks (80 hours) for an incident involving playing cards at a public park for some two hours during working hours and falsifying a log entry to conceal the time so spent (Exhibit 22). In Swindle's evaluation for the first quarter of 1989, his supervisor, William Hartman, gave him an overall evaluation of Effective, although in the narrative he noted that what he observed most about Petitioner is his apparent paranoia over "someone out to get him." The narrative also referred to his weak areas of preparing investigative reports and surveying. In his comments to this report, Petitioner generally denied all of the adverse comments and contended that, if given the proper training, he could do the job in a wholly satisfactory manner. About this time, Petitioner was getting the impression that his present supervisors were looking for grounds to dismiss him. In the April 1990 evaluation of Petitioner (Exhibit 3), he was given an overall evaluation of "Acceptable," but he was marked in the lowest category for meeting minimum requirements in quantity of work, stability, and requiring more than average instructions. Most of the other categories were marked below average. A nominal supervisor at this time, Jim Calandra, was a contributor to the April 1990 evaluation, and in his comments pointed out that considering his time with the Department, the training received, and comments from his superiors over the years, Petitioner should possess "better and more varied technical skills needed for his FST II position." Calandra further concluded that "Gerry will inevitably blame any of his technical deficiencies on lack of training provided by the District or the absence of cooperation from others." The comments of Petitioner's immediate supervisor, Steve Stokes, further noted Petitioner's deficiencies in preparing field investigation reports and in his log keeping. Also the comments of Robert Viertel, Director, Permitting Department, attached to this evaluation, expressed his concern about the lack of initiative, dependability, stability and alertness reflected in the evaluation. To more rapidly gauge the adequacy of Swindle's efforts to improve, Viertel recommended by-monthly evaluations of Petitioner. In his comments to this evaluation (Exhibit 4), Petitioner essentially denied all of the adverse comments made on this evaluation, and blamed the poor evaluation on an "intent ... to upset me, break down my morale and cause me to loose [sic] faith in my ability." In commenting on those factors reflecting poor utilization of his time, Petitioner contended he uses his time better than some others in the Bartow office and specifically alleged that Calandra conducted much personal business on District time, used Department vehicles for personal business and used Petitioner to pick up personal items for Calandra during regular business hours. These comments regarding Calandra led to the memorandum dated 5/15/90 from Stokes to Swindle (Exhibit 8) in which Swindle was directed to be specific as to times and places regarding the allegations. Petitioner's response is a part of Exhibit 8. The charges made by Petitioner against Calandra were investigated, and some of these charges were confirmed in the investigation. Calandra was given an oral reprimand for conducting personal business during District working time and for using District vehicles on personal business. Petitioner apparently contends that his actions in June 1990 in stopping the dredging in a canal in Peace Creek because no permit was issued also affected his dismissal as this constituted "whistle blowing" by him. It was determined by Petitioner's supervisor that no permit was required for this dredging, and no further record or notation of this incident was presented which, in any wise, was shown to be a factor in his dismissal. On the special evaluation of Swindle dated July 20, 1990, Petitioner was marked unsatisfactory in 7 of the 16 categories on which he was rated, and the overall evaluation was "unacceptable." In his comments, Stokes noted that the April evaluation of "acceptable" was based partly on the fact that "Stokes and Viertel had been Swindle's supervisors for only three months, and since Swindle was a longtime employee of the District they decided to rate him marginally satisfactory." Stokes noted no improvement in Swindle's performance during the period between April and July, and cited specific incidents of unsatisfactory performance. In Viertel's comments on this evaluation, he concurred in the evaluation and recommended biweekly evaluations following which, if Petitioner's performance remained unacceptable, that he be terminated. Facing the likelihood of dismissal, Petitioner went on sick leave during July 1990 contending he was under stress. He submitted a letter from Dr. Jones at the Peace River Crisis Center confirming Swindle had been seen for stress-related adjustment (Exhibit 7). During this time, Petitioner, when contacted by District personnel regarding his absence from work, referred to the Jacksonville, Florida, incident in which a disgruntled (and mentally disturbed) employee had entered the workplace with an AK-47 and killed several people. This led the person to whom Petitioner relayed this message to think Petitioner may be contemplating similar action. Petitioner's last day at work was July 25, 1990, after which he took leave. He was dismissed sometime after July 25, 1990. The allegations Petitioner made against Calandra were not a factor in a decision of SWFMD to dismiss Petitioner.
Recommendation It is recommended that a Final Order be entered finding Gerald M. Swindle was dismissed as a Field Services Technician II by SFWMD because of poor performance, and Swindle's allegations made against a fellow employee was not a proximate cause of his dismissal. ENTERED this 28th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are accepted, except: Rejected. The Peace Creek incident occurred in June 1990, and Petitioner's allegations against a fellow employee (Calandra) were made April 30, 1990. Second sentence rejected. Rejected. Rejected that Swindle lost knowledge of his job responsibilities. 13. Rejected as irrelevant. Proposed findings submitted by Respondent are generally accepted. Those not included herein were deemed unnecessary to he results reached. COPIES FURNISHED: Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830 Joseph W. Carvin, Esquire Post Office Box 1427 Tampa, FL 33601 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 33609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
