The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 509.032(2)(b), Florida Statutes, and Rule 61C-1.002(8)(b), Florida Administrative Code. The alleged violations are set forth in a Notice to Show Cause dated March 26, 1998.
Findings Of Fact At all times material, the Respondent, Don's Italian Restaurant of Singer Island, Inc. (Don's Italian), doing business as "Italian Connection," operated a public food service establishment located at 3025 South Federal Highway, Delray Beach, Florida. At all times material, this establishment operated under license control number 60-11547-R issued by the Division of Hotels and Restaurants. At all times material to this case, Joel Wallach was the president of Don's Italian, and Mr. Wallach was also actively involved in the operation of the business. The restaurant operated by Don's Italian is a small restaurant. It has a very limited kitchen area. The approximate width of the kitchen working area is five feet. On March 24, 1998, at approximately 11:00 a.m., Al Pistorio, an inspector employed by the Division of Hotels and Restaurants, went to the restaurant operated by Don's Italian to perform a routine inspection as required by the applicable statutory and rule provisions. Mr. Wallach was present when Mr. Pistorio arrived. Mr. Pistorio introduced himself to Mr. Wallach and stated his reason for coming to the restaurant. Mr. Wallach replied with words to the effect that it was a bad day or a bad time for an inspection. Mr. Pistorio nevertheless started walking toward the kitchen to begin his inspection. Mr. Wallach interrupted Mr. Pistorio and repeated that it was a bad time for an inspection. Mr. Wallach made it clear that he wanted Mr. Pistorio to leave without performing an inspection and to come back at some other time to perform the inspection. Following some further discussion, during which Mr. Wallach continued to object to the inspection being performed at that time, Mr. Pistorio said he would have to call his office for further instructions. Mr. Pistorio called from the restaurant and one of the supervisory personnel at the local office of the Division of Hotels and Restaurants told Mr. Pistorio he should leave the restaurant and attend to other matters pending further instructions. Thereupon, Mr. Pistorio left the restaurant. About an hour or so later, Mr. Pistorio was contacted by his office and told to return to the restaurant operated by Don's Italian, where he would be met by one of his supervisors. Mr. Pistorio returned to the restaurant, where he was met in the parking lot by his immediate supervisor, Gene Peters. Messrs. Pistorio and Peters entered the restaurant and asked Mr. Wallach if they could conduct an inspection. Mr. Wallach agreed, and the two inspectors immediately commenced the inspection. Within just a couple of minutes, Mr. Wallach approached the two inspectors as they were discussing conditions in the restaurant that appeared to be minor violations. Mr. Wallach appeared to be agitated and placed a hand on Mr. Peters' shoulder to get his attention. Mr. Peters told him to remove his hand. Mr. Wallach became angry and confrontational and ordered Mr. Peters to leave the restaurant. During the course of this confrontation, Mr. Peters told Mr. Wallach that he would be subject to fines if he prevented the inspectors from completing their inspection. Mr. Wallach continued to demand that Mr. Peters leave the restaurant, but did agree that Mr. Pistorio could remain and finish the inspection. Thereupon, Mr. Peters went out into the restaurant parking lot and Mr. Pistorio resumed his efforts to inspect the restaurant. A minute or two later, Mr. Wallach noticed that Mr. Pistorio was writing up a violation based on the morning incident. Mr. Wallach again became upset and angry and began to speak to Mr. Pistorio in a confrontational and abusive manner. Mr. Wallach's abusive comments to Mr. Pistorio included the threat that if Mr. Pistorio was going to write him up for violations, ". . . I'll throw your ass out, too." Under these hostile circumstances, it was not possible for Mr. Pistorio to continue his inspection without fear of further unpleasantries, so he promptly left the restaurant and joined Mr. Peters in the parking lot. Both inspectors left the restaurant premises without being able to complete an inspection of the restaurant. It is the policy and practice of the Division of Hotels and Restaurants to inspect restaurants during hours of operation, usually between the hours of 9:00 a.m. and 5:00 p.m. It is also a policy and practice to conduct the inspections without prior notice to the restaurant. Unannounced inspections are more likely to reveal the normal condition in which the restaurant facilities are maintained. Restaurant inspections are often made during peak meal times in order to observe whether proper sanitary practices are maintained during periods of peak activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent has violated Rule 61C-1.002(8), Florida Administrative Code, and imposing a penalty consisting of an administrative fine in the amount of $1,000. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 29th day of March, 1999.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2008.
The Issue By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.
Findings Of Fact P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.
Findings Of Fact Petitioner, the Department of Health and Rehabilitative Services, is the state agency charged with, inter alia, issuing licenses and regulating the conduct and operation of Adult Congregate Living Facilities. Respondent, Kriscour, Inc. d/b/a Executive I and II, is an Adult Congregate Living Facility situated at 221 Fifth Avenue North, St. Petersburg, Florida. On May 24, 1988, Petitioner's human services surveyor analyst, Sharon McCray, conducted a survey of Respondent's facility along with dietician, Lavita Perry and Gordon Michael, a fire safety inspector. Following that survey, an exit conference was held with Respondent's administrator and a time frame was established to correct any noted deficiencies. Ms. McCray conducted follow-up inspections on September 2 and November 28, 1988. (Petitioner's Composite Exhibit 1.) As a result of the May 24, 1988 survey, Respondent's facility was cited for the following deficiencies: ADMINISTRATION, MANAGEMENT AND STAFFING STANDARDS The facilities fiscal records were not up1to date. (Last entry - February, 1988) 10A-5.21(1) 1/ The facility did not provide the minimum staff to resident ratio on Sundays (only two (2) staff on duty). 2/ 10A-5.19(6)(a)1,2,3,4,(b)1,a,b,c,d,(c)2, a,b,c,d Two (2) resident contracts did not contain the monthly rate the resident was to pay. All resident contracts did not contain the following provisions: A refund policy to apply, when and if, resident discharge or transfer of ownership occurs. 10A- 5.24(1)(b)1a,b,c,d,e,f,g) & 400.424(2),(3) ADMISSION CRITERIA AND RESIDENT STANDARDS Two (2) resident files did not have a Health Assessment form present. (Repeat deficiency) One (1) resident's Health Assessment had not been completely filled out. 10A-5.181(1)(a), (c) & 400.426(3),(4),(5) Physical examination of one (1) resident did not include a statement that on the day of examination the individual was free of communicable disease. 10A-5.181(2)(a)4d Two (2) medications (BROMFED & PILOCAR) for one (1) resident, had been discontinued without a written physician's order on file. One (1) resident's prescribed medication sheet had not been annotated that the resident received their medication (DISYREDOMOLE). 10A- 5.182(3)(b)2, (c) The facility was not providing staff and services appropriate to meet the needs of the residents, as evidenced by the lack of housekeeping services observed throughout the facility. 10A-5.182(4) A copy of the Resident Bill of Rights was not posted in the facility. 400.428 There was no Ombudsman Council Poster in the facility. 10A-5.182(5) The policies and procedures for the provision of social and leisure services were not being followed in that activities listed were not of interest to the residents. (10A-5.182(7)(a) FOOD SERVICE STANDARDS A physician's ordered low sodium diet was not served as ordered in that all residents were observed to receive the same food during the lunch meal. 10A-5.20(1)(e) Regular diets did not meet the nutritional adequacy of the residents in that the following items were not offered on a daily basis: Four (4) 1/2 cup servings from the fruit and vegetable group. Six (6) ounces from the protein group. 10A-5.20 (1)(f) The standardized recipe file was not complete in that all foods on the menu were included. 10A- 5.20(1)(g) Foods were not served attractively and at palatable temperatures in that coleslaw and pudding were both served at room temperature. (Cold foods must be served at 45 F or below.) 10A-5.20(1)(l) The following items of Chapter 10D-13, F.A.C. Food Service Code, were not met: Executive I The following equipment in Executive I was dirty and in need of a thorough cleaning: Both dining room floors. Bulk milk dispenser (especially around the gasket). Ceiling fan. Lamp over sink. The walls and door of the north dining room were dirty and in need of a thorough cleaning. The hood, extinguishing pipes and filters were dirty and in need of a thorough cleaning. (Repeat deficiency) Both ovens were dirty and in need of a thorough cleaning. The linoleum flooring in the hand sink room was not of a smooth and easily cleanable surface and needed to be sealed. The green freezer (in the hand sink room) was observed operating at 15 F (must be 0 F or below). The green refrigerator (in the hand sink room) was observed operating at 55 F (must be 45 F or below). The eating utensils (silverware) were observed sitting out in the open air. (Must be pro- tected from dust and dirt). Employees were observed handling the food without a sanitary food handling device (gloves). The threshold of the doorway from the north dining room to the handwashing sink area had chipped paint and needed to be repainted. Executive II The refrigerator and freezer (Executive II) were not provided with accurate thermometers. (Repeat deficiency) The linoleum flooring around the cabinets was peeling up and needed to be sealed. There was a hole in the paneling (in front of the sinks) which was in need of repair. The cabinet drawers and doors had chipped and peeling paint and were in need of re- painting. The back door was observed standing open, so that the kitchen area was not kept free of contaminants. The following equipment was dirty and in need of a thorough cleaning. The floor (throughout the kitchen and dining room). The pot holders. The back screen door in the dining room was torn and had chipped and peeling paint and was in need of repair and repainting. Store Room Dry goods were observed being stored in old refrigerators and freezers which were un- plugged. (Equipment must be maintained in good working order.) The chairs throughout both Executive I and II were observed to be rusting and in need of painting. The employee restrooms and hand sinks throughout both Executive I and II were not provided with the following: Sanitary hand drying device. Sanitary hand washing soap. (Repeat, uncorrected deficiency) Potentially hazardous foods were not being kept at safe temperatures during all periods of transportation in that the resident's meals were being prepared in Executive I kitchen and being transported to Executive II kitchen without the use of hot and cold food storage equipment. (Repeat deficiency) 10A-5.20(m) PHYSICAL PLANT STANDARDS Thermometers were not installed on each floor of the facility, and in each room of the cottage to monitor the temperature. (Temperatures cannot exceed 90 F in any resident area.) Mechanical cooling devices were not available for all resident rooms. 10A-5.23(2)(a),(b), The following resident beds were in need of being replaced due to being broken down (no support) or being stained and/or torn. Cottage - Room #1. Cottage - Rear unit. Exec. I - Rooms #102 and #110. 10A-5.23 (8) The first floor common bathroom in Executive I had no means of ventilation. 10A-5.23(O)(a),(b), (d),(e) The screen of the first floor rear door of Executive II was in need of repair. The window screen in Room #207 (Executive I) needed to be installed. 10A-5.23(13) The following items in Executive I were in need of repair: Room #102 had peeling wallpaper. The first floor hall had exposed carpet strips with tacks protruding. The first floor common bathroom had damage to the floor linoleum and walls. The bathroom of room #107 needed new floor covering. Room #105 needs repair to the window sill where the wood had warped/cracked. Room #105 needed repair to the wall behind sink faucets. The intercom system was inaudible on both floors. The second floor rear stairwell (near exit door) had rotten floor boards. The second floor common bathroom had a hole in the ceiling. The following items in Executive II were in need of repair: The bathroom of room #6 had missing wall tiles around the tub. Room #5 had holes in the wall over the bathroom door which needed patching. The following items in the cottage required repair: The windows of bedroom #1 needed repair one (1) did not close completely, and one (1) would not open easily. The rear exterior gate was off its hinges. The bottom step of the rear apartment was not nailed down. 10A-5.22(1)(a) The following lighting fixtures were in need of protective cover and/or bulb: Executive I A. Rooms #101, #102 (bathroom), #105, #206, #201 (bathroom), #101, and first floor hallway. Executive II A. Rooms #214, #211, #216, and #6 (bathroom). Cottage 10A-5.22(1)(b) All plumbing fixtures were not properly maintained as follows: Executive I There was an uncapped (open) sewage line on the exterior west side of building. The second floor common bathroom toilet was in need of repair. In room #211 the shower head was in need of being tightened. In room #211 the sink had no hot water faucet. The expansion tank located under the first floor rear stairwell was leaking. The toilet of room #102 needed repair. The toilet of room #104 needed repair. Executive II The facility did not have back-flow devices to prevent contamination from entering the water supply. 10A-5.22(1)(c) The following areas were in need of scraping and painting: Executive I The first floor common bathroom. Room #109 (molding and trim). Room #107 (bathroom). Room #105 (bathroom). Room #106 (ceiling and wall were water stained). Room #211 (window sills). Second floor hallway ceiling. Room #210 (ceiling and window sills). Room #203 (bathroom). Room #209 (paint were patched and window sills). K. Room #208, #205. Room #201 (window sills). Front staircase to second floor. The rear exterior fire escape needed to be scraped and painted on top and bottom surfaces. All doors with chipping/peeling paint. Executive II Room #214 (near sink). Room #211 (bedroom and bathroom window sills) and #221 (window sills). Room #216. Room #5 and #6. Rear porch ceiling. Room #4 (wall area under window). All doors with chipping/peeling paint. (Uncorrected, repeat deficiency) 10A-5.22(1)(d) The following furnishings were in need of the following repair: 1. Executive I Replace toilet seats (had chipped and/or worn paint in rooms #101, #103, #211 and common bathroom (northside second floor). The following was in need of cleaning or replacing, as follows: Shower curtains in room #216. Hall carpets throughout were badly soiled. Room #207 - the carpet was stained and may be the cause of a urine odor. The carpeting in rooms #205 and #208 needed replacement. The carpeting in rooms #210 and #211 was in need of repair or replacement. The bathroom carpet in room #102 needed cleaning. 1. Executive II Furnishings were in need of the following repair: Replace toilet seats in rooms #211, #221, #4 and #1. The following was in need of cleaning or replacing as follows: The large sitting room carpet needed cleaning or replacement. The orange couch needed cleaning or replacement. Room #2 - carpet needed cleaning or replacement. The bathroom curtain of room #1 needed cleaning. 3. Cottage The toilet seat in room #1 needed replacement. The following furnishings were in need of cleaning or replacement in room #1. One (1) chair was badly stained. The carpet needed cleaning. The window shade in the bathroom was torn. 10A-5.22(1)(e) The building was not maintained in a clean and orderly condition, as follows: Executive I The T.V. room was in need of a thorough cleaning of all furnishings and fixtures, as there was an accumulation of dust. Rooms #106, #206 and #215 (bathroom), needed a thorough cleaning. Remove discarded toilets from the second floor rear stairwell landing. Clean paint off floor of room #211. Clean toilet of second floor, north, common bath. Executive II Room #3 needed a thorough cleaning. The exterior walkway between both buildings had an accumulation of debris which needed to be picked up. Cottage Room #1 needed a thorough cleaning of all furnishings and fixtures. The rear room needed a thorough cleaning and organizing, including the bathroom and storage closet. 10A-5.22(1)(g) The carpet in room #216 in Executive I was buckling, which could present a hazard. 10A-5.22(1)(i) Room #207 of Executive I had a urine odor. 10A-5.22(1)(k) The facility's maintenance and housekeeping plan was inadequate as written in that it did not meet the demands of the facility in order to comply with standards in 10A-5.22(1). 10A-5.22 (2) OTHER ADMINISTRATIVE RULE REQUIREMENTS The facility did not have designated smoking areas in the facility (as stated in the resident contract). 10A-5.23 (1) FIRE SAFETY Executive building II did not meet the require- ment for smoke detection by providing either: A single station smoke detector in each bedroom, powered by the building electric system; A corridor smoke detection system, on each floor, designed to initiate the required fire alarm system, and having the units spaced approximately 30 feet apart, with one (1) of the detectors installed to pro- tect rooms #1 and #2 on the first floor. Ref: 4A-40.005; 4A-40.017; NFPA 101, 17-3.4.4; NFPA 72E, 4-3.5.1 The headroom on the second floor, rear exit access balcony, in executive building II, was less than six (6) foot, eight (8) inches. Ref: 4A-40.005; NFPA 101, 5-1.5 There were locks on the bathroom doors in rooms #2, #6, #211, #214, in executive building II that could not be released from inside the bathrooms. Ref: 4A-40.005; NFPA 101, 5-2.1.5.1 The oil burner room in the cellar of executive building II, was not equipped with an automatic fire extinguishing system. Ref: 4A-40.007(1); 4A-40.010 There was no labeled, oil burner emergency shut off switch at the top of the stairs leading to the oil burner in the cellar of Executive building II. Ref: 4A-40.018(2); NFPA 31 Balcony guard rails were less than 42 inches high in the following locations: Both sides of the second floor, rear exit balcony of executive building II. Front interior stairs on the second floor of executive building I. The rear interior stairs on the second floor of executive building I. The rear interior stairs on the second floor and intermediate level balconies in building I. Ref: 4A-40.005; NFPA 101, 5-2.2.6.5 The ceiling fan in executive building I, room #202 was serviced by prohibited, unprotected, extension cord type wiring. Ref: 4A-40.019(2) The corridor smoke detection system on the first and second floors of executive building I was inadequate in that the spacing between units was greater than 30 feet. Additionally, units were not provided in the corridor containing room #215, and the first and second floor stair lobbies containing rooms #106 and #206. Ref: 4A-40.005; 4A-40.017; NFPA 101, 17-3.4.4; NFPA 72E, 4-3.5.1 3/ Mary Cook, a public health nutrition consultant, has previously surveyed Respondent's facility both prior to and subsequent to the May 24, 1988 survey. Ms. Cook was part of the survey team that conducted the survey of Respondent's facility on October 10, 1989. Ms. Cook observed the kitchen service and preparation area and the meal preparation during the survey of October 10, 1989 and a follow-up survey of December 12, 1989. The portion sizes were small and did not correspond to menu requirements and menu items which were substituted were not appropriate. As noted, Respondent prepares its food in one kitchen and transfers it from the dining room in Executive I to the Executive II facility. While Respondent's staff prepared tuna, it was left standing at room temperature for an inordinate amount of time creating a potential health hazard and the food was not properly refrigerated after preparation and during transportation to the Executive II dining room. Ms. Cook verified the temperature of the food with a thermometer and it was below the acceptable temperature range for both hot and cold foods which were served to residents. During the October 10, 1989 survey, Respondent failed to maintain clean kitchen equipment in the food service and storage areas and kitchen floors were dirty and in need of cleaning. These were items which Respondent had been previously cited during the May 24, 1988 survey. Also, during the December 12, 1989 follow-up survey, these area remained uncorrected. On October 4, 1989, Ms. Cook conducted an unannounced complaint investigation against Respondent's facility which alleged that Respondent maintained an inadequate amount of non-perishable food for a seven day supply as required. During Ms. Cook's October 4, 1989 complaint investigation, a review of Respondent's fiscal records which revealed that Respondent did not have records accessible for food costs dating back to August 1988. Ms. Cook also noted that the overall cleanliness of the facility had deteriorated from previous surveys, to wit: there were problems with the refrigeration and freezer units. Specifically, one freezer unit was not maintaining the proper temperature and food in the refrigerator had spoiled. Stored chicken was warm and blood was dripping on other perishable foods stored in the refrigerator (lettuce and other vegetables). Also during the December 1989 survey, the meal portions were too small in view of the age and nutritional requirements of the patient census. Substitute items were not adequate and were less than the established nutritional guidelines as provided for in the menu. Alice P. Adler, a human services surveyor specialist, is familiar with Respondent's facility, having surveyed it over the past two years. Ms. Adler was present during the October 10, 1989 survey. Ms. Adler reviewed the survey report and it accurately depicted the findings and conditions which existed at the facility. (Petitioner's Composite Exhibit 1, Tab 1.) John C. Morton, Petitioner's human services program director who is in charge of the ACLF program in the district, was qualified and testified as an expert witness regarding ACLF inspections and operations. Morton has reviewed the licensure file of Respondent's facility and is familiar with the licenses issued to Respondent. Respondent's facilities presently has a conditional license. Morton reviewed Respondent's licenses issued beginning with the period July 20, 1984 up to and including April 19, 1990. Of the thirteen (13) licenses issued to Respondent, eleven (II) were conditional licenses. Based on the number of conditional licenses issued to Respondent facilities, a clear pattern of noncompliance with minimum standards was established. On October 19, 1988, Morton considered that the conditions that existed at Respondent's facilities warranted imposition of a moratorium on new admissions based on inadequate food supply and unsanitary conditions as evidenced by a dirty kitchen and a strong smell of urine throughout the facility. Morton issued a moratorium on admissions. A review of the survey report of the October 10, 1989 survey revealed that Respondent had not corrected, as of April 9, 1990, many of the deficiencies cited including ACLF 205, 404, 708 and 709 despite the amount of time extended to Respondent by the surveying officials. A review of the surveys of May 24 and October 10, 1989, established that Respondent failed to maintain adequate fiscal records in that fiscal records were incomplete and did not comply with minimum requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's renewal of its license to operate Executive I and II as an Adult Congregate Living Facility and cancel the conditional license of Kriscour, Inc. d/b/a Executive I and II. DONE and ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1991.
Findings Of Fact Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue the beverage license for which petitioner has applied. DONE and ENTERED this 15th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200 Ft. Lauderdale, Florida 33316 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of November, 1990. APPENDIX CASE NO. 90-3806 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Stephen J. Iwaniszek 922 Countington Lane, Apt. J Fort Myers, Florida 33919 Douglas L. Waldorf, Jr. SMOOT ADAMS JOHNSON & GREEN, P.A. P.O. Box 06259 Fort Myers, Florida 33906-6259 Acting Executive Director Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925
