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
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Natural James Supper Club Catering, located at 4322 North State Road 7, Lauderdale Lakes, Florida, held a catering license issued by DABT. The license number is number BEV 1616571, Series 13CT. This license authorized Natural James Supper Club Catering to provide catering services at its premise's location. Natural James Supper Club Catering is subject to the regulatory jurisdiction of DABT as a result of having been issued such a license by DABT. At all times material hereto, the sole owner of Natural James Supper Club Catering was Larnieve Uter. On March 24, 2003, having received a complaint that Natural James Supper Club Catering was selling alcoholic beverages in a manner not permitted by its license, DABT initiated an investigation. On March 24, 2003, Captain Patrick Roberts and special agents of DABT entered the premises of Natural James Supper Club Catering. Accompanied by the husband of Mrs. Uter, Glasford Uter, Captain Roberts and the other agents observed alcoholic beverages that had been used at a prior catering event being stored at Natural James Supper Club Catering; observed alcoholic beverages at Natural James Supper Club Catering that did not have excise tax stamps on them; and observed for sale a bottle of an alcoholic beverage that had been refilled with an unknown spirituous beverage. As to the storing of alcoholic beverages, according to Captain Roberts, the license held by Natural James Supper Club Catering prohibits it from storing alcoholic beverages that were used in a prior catering event. Instead, Natural James Supper Club must return the alcoholic beverages to the vendor from whom they were purchased. Further, Natural James Supper Club must possess a contract between it and the vendor; however, no such contract was presented to Captain Roberts or any of the other agents. DABT seized the alcoholic beverages and took pictures of them. DABT seized 191 bottles of wine, 118 containers of spirits, and 959 containers of beer (cans and bottles).
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 Alcoholic Beverages and Tobacco enter a final order: Finding Uter Investment Corp., d/b/a Natural James Supper Club Catering in violation of Section 561.29(1)(a), Florida Statutes (2001), through violating Sections 562.12(1), 562.01, and 565.11, Florida Statutes (2001). Imposing a fine of $2,500 and excise tax upon Uter Investment Corp., d/b/a Natural James Supper Club Catering. Suspending, for a 20-day period, the license of Uter Investment Corp., d/b/a Natural James Supper Club Catering. Imposing a forfeiture of the seized alcoholic beverages. DONE AND ENTERED this 4th day of August 2004, in Tallahassee, Leon County, Florida. S 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 4th day of August, 2004.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent operates a 120-bed skilled nursing facility in Tallahassee, Florida (Facility) pursuant to a license issued by the Agency. The Facility is part of a "continuing care retirement community" that also includes an assisted living facility (Westminster ALF). There are residents of the Facility who have "lived [in the community for] up to 20 years." The Facility has the benefit of a stable workforce. Its staff "retention rates are very high." As a result, staff members are generally quite familiar with the residents and their needs. A 20-bed wing on the second floor of the Facility (referred to as the "240 wing") houses residents in the "middle stage of dementia." Most of these residents come from the Westminster ALF, which has a "memory support floor" set up "very similarly" to the Facility's 240 wing. The 240 wing is "for residents [who] are very social" and enjoy interacting with others and participating in the many group activities that are available to residents in this wing. It is not for persons who are prone to violent outbursts. The residents in the unit are evaluated on a regular basis to ensure that their placement there remains appropriate. If it is determined that a placement has become inappropriate, the resident will be moved to a more appropriate setting. The 240 wing provides a "structured" environment for its residents. Activities take place "at the same time every day"; furniture is not moved "so the [residents] know where to go"; and there is the "same staff caring for [the residents]" on a regular basis. Assigned to the 240 wing during the day shift are: four Certified Nursing Assistants (CNAs), including a team leader, who are responsible for the care and supervision of the units' residents; an "activities person"; and the "unit manager who oversees the entire wing." There are also others who have occasion to be "on the floor," including "floor nurses," housekeeping and janitorial staff, clergy, and volunteers. In addition, some residents have "sitters" (hired by the residents' families) who stay with them and provide them with extra help in dealing with their day-to-day needs. The doors to the 240 wing are supposed to remain closed, but they are not locked and residents from other parts of the Facility have access to the unit. There is a nurses' station, which is open on three sides, located in approximately the center of the second floor of the Facility. It is an active area usually occupied by "clinical staff," who, from their vantage point at the station, are able to "look straight down" the 240 wing hallway (as well as the 220 wing and 260 wing hallways) and into the second floor dining room, which is approximately ten to fifteen feet away. The second floor dining room is not ordinarily visited by residents except at "eating time," when its doors are opened and residents are invited in. It has one of the four "wheelchair buffets" located in the Facility. There is also a "wheelchair buffet" in the first floor dining room,2 one in the 140 wing hallway (on the first floor), and another in the 240 wing hallway.3 The 140 wing and 240 wing hallways are sufficiently wide4 to provide ample room for the "wheelchair buffets," as well as for the tables and potted plants that have been placed there. The "wheelchair buffets" in these hallways are positioned near (but not flush against) the wall so they do not impede hallway traffic. The instant case involves allegations of "unsupervised access" of "24 cognitively impaired, ambulatory [Facility] residents,"5 on January 4, 2006, to the "wheelchair buffets" in the second floor dining room and in the 140 wing and 240 wing hallways. The discussion that follows concerns these three "wheelchair buffets" (Three Wheelchair Buffets), as they existed on and leading up to the date in question. At all material times to the instant case, each of the Three Wheelchair Buffets consisted of a "pretty thick" and relatively sturdy rectangular folding table on which four large (approximately a foot wide, a foot and a half long, and six inches deep), metal chafing dishes (with electric heating elements, temperature control knobs,6 and two-inch high, handled lids) were set side-by-side the length of the table. The table was "very low to the ground" to accommodate residents in wheelchairs. Running the length of the "tray line" side (or front) of the table was a "sneeze guard," beneath which was an additional Plexiglas barrier (Lower Barrier) that extended up to the height of the rims of the chafing dishes. There was a space of four inches between the bottom of the sneeze guard and the top of the Lower Barrier. It would have been extremely difficult, if possible at all, for a resident, standing or in a wheelchair in the front of the table, to reach through this four-inch space and "get the lid off" any of the chafing dishes (and there is no record evidence that any resident ever attempted to do so). Neither the rear nor the ends of the table had a "sneeze guard" or a Lower Barrier. At meal times, food prepared in the Facility's kitchen was brought to the table on aluminum pans having depths from approximately two and quarter inches to three and half inches. The pans, with the food on them, were placed in the "wells" of the chafing dishes, suspended over no more than two inches of water lying at the bottom of the dishes. The chafing dishes' heating elements, when turned on, heated the water, producing steam, which kept the food at appropriate serving temperatures. Residents (both wheelchair-bound and non-wheelchair bound) went down the "tray line," observed the food items in the unlidded chafing dishes, made their selections, and then communicated their choices to the Facility staff members (Buffet Staff), who were manning the buffet from their positions on the opposite side (or rear) of the table (which they were able to get to without difficulty given the distance the table was away from the wall).7 The Buffet Staff removed the selected food items, in appropriate portions, from the chafing dishes and placed them on plates. They then put the plates on trays and gave them to the residents.8 Residents were frequently accompanied to their seats by Facility staff, who carried the residents' trays. During the entire process, there was careful monitoring of the residents' movements. The "wheelchair buffets" were the product of considerable study and planning. They were borne out of desire on the part of Respondent, as a step in the development and implementation of a "person-centered [overall] care model"9 for the Facility, to move from the "institutional model" of food service ("where the trays are assembled and plated in another location and brought to the floor and then given to each resident") to a "more homelike model where residents could see the food [and] smell the food" and have the opportunity to select, from among the available choices, what they wanted to eat. The Facility's nutrition committee "submitted a request back in 2002" that such a change be made. It took Respondent quite a while to work out the details of implementing this change. Input was sought and obtained from the residents, their families, Facility staff, and outside consultants, as well as the Agency. Safety issues, including those relating to the placement of the "wheelchair buffets," were considered. The Agency was consulted regarding these matters, and it expressed no concerns about the planned locations of the "wheelchair buffets." As part of the planning process, Respondent set up a non-operational, unmanned "wheelchair buffet" (with empty chafing dishes) in the 240 wing hallway to see what the residents' reaction to it would be. The residents did not "seem interested in it at all." "They [simply] walked past it." Similar "trial runs" were conducted at the other three planned locations, with similar results. The "wheelchair buffet" in the 240 wing hallway was the first of the Facility's four "wheelchair buffets" to go into service. It became operational in 2004. Later that year, the Agency surveyed the Facility and found no deficiencies related to this "wheelchair buffet." "[P]leased that there were no concerns stated" with respect to this "wheelchair buffet," Respondent "moved forward with placing the other ones into service." By February 2005, the other three "wheelchair buffets" were up and running. Along with the "wheelchair buffet" in the 240 wing hallway, they have remained in service through the present. By all appearances, the Facility's transition to buffet-style dining has been a success. The Facility's "management services" office developed the following written "guidelines" for "[b]uffet [s]tyle [d]ining" at the Facility" (Buffet Guidelines): All residents will be offered an opportunity to partake of buffet meals in their dining rooms. This will provide choices to our residents, as well as offer a more interesting meal time environment. Residents will be asked if they would like to go through the buffet line, or if they would like nursing staff to tell them what is on the buffet. Diet will be liberalized as much as possible. See liberalized diets for long term care. There will be a choice of 2 entrees at all meals for all therapeutic diets and consistency types as well as a selection of starches and vegetables. We also provide a soup, and selection of salads, and 2 dessert choices for lunch and dinner. The Dining Services Director/dining services department will be responsible for maintaining standard operating procedures at remote dining locations: There must be a system in place to keep hot foods above 140° and cold foods below 40°F. Temperature logs must be maintained on foods and refrigeration units designated for resident use. Sneeze guards must be utilized on hot food tables and salad bars, etc. Residents that choose not to or are unable to eat in dining room will be served in their room by nursing staff. Room trays will be assembled from the steam table in the main floor dining room in accordance with physician ordered diet and delivered in closed food carts to assure maintenance of safe food temperatures. Operating Hot Food Tables Plug-up steam table Be sure table is free of crumbs, etc. Turn on switch. Select desired temperature setting Place pans in steam table bins Serve Clean steam table daily Cleaning Hot Food Table IMMEDIATELY AFTER USE Turn off steam table Cover all pans on steam table Replace all guards Empty and clean all pans daily Buffet staff were trained, in accordance with the Buffet Guidelines, to "turn [the chafing dishes] on in the morning, serve breakfast, turn [them] off after use, turn [them] back on before lunch, and then off, and then on before dinner." They did not always, however, in practice "turn [the chafing dishes] off after use." "[W]hen they were having problems keeping the food at hot temperatures, they would leave them on throughout the day periodically."10 That they did so was not common knowledge among the Facility's non-food service employees. At no time prior to the Agency's conducting the survey that led to the issuance of the instant Administrative Complaint had the Facility experienced any problems with residents making, or attempting to make, contact with the chafing dishes on any of the buffet tables, nor had the residents shown any interest in the buffet tables unless there was a meal being served. Furthermore, no resident had ever [accidentally] "fallen in close proximity to [a] buffet table." The survey referenced in the preceding paragraph was an annual survey that was conducted by the Agency from January 3, 2006, to January 6, 2006. The alleged deficiency that is the subject of the instant controversy was observed on January 4, 2006. On the morning of January 4, 2006, after breakfast had been served, Agency survey personnel observed the activity at and around the Three Wheelchair Buffets. At the time of these observations, there were no Buffet Staff manning the tables and the lidded chafing dishes on the tables were turned on and had hot water (with temperatures of 149 degrees Fahrenheit or more11) in them.12 Agency survey personnel found the lids of the chafing dishes too hot for them to hold in their bare hands when they went to take the lids off.13 Although there were residents in the vicinity of the buffet tables during these observations, no residents were seen going up to the tables to examine or touch the chafing dishes. The activities at and around the "wheelchair buffet" in the second floor dining were observed from approximately 9:09 a.m. to 9:37 a.m. (Dining Room Observation Period). Residents 26 and 27 (both of whom had transitioned to the Facility from the Westminster ALF) were in the dining room this entire time. Resident 26 used a wheelchair and, according to the records maintained by the Facility, had mild cognitive impairment, although his impairment was "not particularly obvious." He was someone who "stay[ed] in his wheelchair." Although he "could move himself," there was no reason to believe, based on prior experience, that he would attempt to approach the buffet table in the dining room between meals. Resident 27 also used a wheelchair. She was deaf, blind, and mute. According to the records maintained by the Facility, she had severe cognitive impairment. When she was sitting in her wheelchair in the dining room and wanted to leave, she would "tap[] her foot" and a Facility staff member would come and wheel her out. She did not "move about the unit unaccompanied." There was no reason to believe, based on prior experience, that she would at any time attempt to approach the buffet table. During the Dining Room Observation Period, approximately five other persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) went "[i]n and out of the dining room" (the doors to which were unlocked). No Facility staff member took any action to "redirect" these individuals. For a portion of the Dining Room Observation Period, Jim Gagnon, Ph.D., a "contract" licensed clinical social worker, was seated facing Resident 26 and engaging in a conversation with him. "[T]here were [also Facility] staff in and out of the dining room periodically [during the Dining Room Observation Period, but] there was no continuous supervision." In addition, there were Facility staff "at the nurses' station intermittently" and they could "see into the dining room" (albeit not the entire dining room). The activities at and around the "wheelchair buffet" in the 240 wing hallway were observed from approximately 10:10 a.m. to 10:37 a.m. (240 Wing Observation Period). During the 240 Wing Observation Period, there were persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who passed by (but did not stop at) the buffet table. Some were walking. Others were in wheelchairs. Though there were Facility staff in the hallway (one engaged in an activity with approximately 12 residents, and others entering and exiting the resident rooms off the hallway), no staff member was "continuous[ly]" within twenty feet of the table. The activities at and around the "wheelchair buffet" in the 140 wing hallway were observed from approximately 11:10 a.m. to 11:16 a.m. (140 Wing Observation Period). During the 140 Wing Observation Period, there were approximately six persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who were "just sitting or walking around [and] chatting" in the hallway. No Facility staff member was nearby providing supervision. It was not until 1:00 p.m. that Agency survey personnel first brought to the attention of the Facility's administration that they believed that the conditions that they had observed with respect to the Three Wheelchair Buffets constituted a deficiency requiring immediate corrective action. Respondent timely took action to eliminate these conditions. The Facility was deemed by the Agency to be in substantial compliance with all regulatory standards on February 20, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2006.
The Issue The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985.
