The Issue The issues in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the licensing of contractors as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent has been licensed in Florida as a general contractor since November, 1970. At all times material to this proceeding, the Respondent qualified A & E Builders, Inc., and Maury Daniel Construction Company under his general contractor's license. During March, 1982, Respondent qualified Southern Bilt Kitchens & Baths, Inc. ("Southern Bilt"), under his general contractor's license. Prior to March, 1982, Petitioner had not applied to qualify Southern Bilt under his contractor's license. Angel Alvarez is now and at all material times was the owner and president of Southern Bilt. Neither Alvarez nor Southern Bilt was registered or certified as a contractor with the Construction Industry Licensing Board. Alvarez has been licensed in Dade County only as a miscellaneous carpenter. For a period of time which included the years 1980 and 1981, the Respondent received payments from Southern Bilt to obtain building permits so that Southern Bilt could engage in various construction projects. Respondent was not otherwise employed or involved with Southern Bilt, and he did not participate in the operations, management, or control of the company. Respondent would receive payments from Southern Bilt, the amount of which varied depending upon the nature of the project, in exchange for obtaining building permits. Southern Bilt did not have persons in its employ who were qualified to obtain building permits. Southern Bilt utilized Respondent's services solely for the purpose of obtaining building permits. During October, 1980, Patricia Stewart, a resident of Miami, Florida, entered into a contract with Angel Alvarez, who represented Southern Bilt. The contract was for Southern Bilt to construct an addition to Mrs. Stewart's home. Alvarez and Southern Bilt were not qualified to obtain a building permit to complete the project. The Respondent obtained a building permit for the construction as the qualifier for A & E Builders, Inc. The permit was issued on January 15, 1981. Except for obtaining the permit, neither the Respondent nor A & E Builders, Inc., was involved in the project in any manner. Difficulties arose during construction of the project. Mrs. Stewart had paid a substantial portion of the contract price. She was dissatisfied with the quality and pace of work that was being performed. She did not learn that the building permit for the addition to her home was obtained by persons other than Alvarez and Southern Bilt until after she considered the project abandoned by Southern Bilt and contacted employees of the Building and Zoning Department in Dade County.
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 Petitioner has alleged, in essence, that he has been discriminated against because of his race by a racially hostile work environment during his employment with the Respondent and by direct discrimination by being denied employment advancement and by being given more and broader job duties, with no additional compensation, as compared to less experienced co- workers of other races. Specifically the Petitioner contends a racially hostile work environment caused his constructive termination; that he completed training books which should have advanced him to a higher position; and that less experienced white workers were advanced ahead of him.
Findings Of Fact The Petitioner Thomas Hall, was hired as a crew member by the Respondent Mex of Santa Rosa d/b/a as Taco Bell on March 9, 1996. He began working at a Taco Bell restaurant owned by the Respondent in Milton, Florida. The Petitioner maintains that while he worked at the Taco Bell restaurant he was subjected to racially negative comments concerning his relationship with a white woman, his fiancé, and regarding the fact that they were about to have a child together. He maintained that the racially derogatory comments were made by the General Manager, Dawn Young and the Assistant Manager Eileen McRae. Dawn Young is White. Eileen McRae is Black. The Petitioner maintains that the racially negative comments were so frequent, so hostile and hurtful that he suffered by being employed in a racially hostile environment because of these actions by his superiors in management. He maintains, in effect, that it caused his constructive discharge because he could no longer tolerate the racially derogatory comments concerning him, his fiancé and his family. The Petitioner left his employment after giving two weeks notice on May 29, 1996. Thus, he worked approximately two months and twenty days. The Petitioner maintains that he attempted to complete several employee workbooks and the tests on those workbooks, which were designed to help employees earn promotions. He maintains that he got no help completing the workbooks while White employees did get help from management in completing the workbooks. He maintains that White employees were promoted sooner than he or Black employees and within their 90-day probation period. He also contends he was given extra job duties which were beyond his job description and for which he was given no extra compensation. The Petitioner's child was born on June 2, 1996, immediately after his leaving employment. The Petitioner had given a two-week notice on May 29, 1996, but the General Manager, Dawn Young, told him that it would not be required that he work out the remainder of his two-week notice, so he quit on May 29, 1996. He left his employment after he had been to a job interview during his employment, on a day when he reported that he was sick as the reason for his absence from his employment. That interview resulted in his getting a job at the "convalescent center" at a higher rate of pay, which was his reason for leaving of his employment at Taco Bell. The Respondent had a consistent policy of requiring all employees to complete a 90-day probationary period when first hired. This policy was applied to all new employees regardless of race and no person of any race hired after the Petitioner was promoted or advanced ahead of the Petitioner. In fact, Josh Bond, the example that the Petitioner used in his testimony of a White employee, who had allegedly been promoted ahead of him and sooner than he was, did not actually get any promotion (to crew leader) until he had worked for the Respondent for one and one- half years. Josh Bond had to complete several training manuals and request a promotion, which he did not receive initially. Later, he was promoted to shift manager after he had worked for Taco Bell for almost four years. He was employed on January 2, 1996, and thus had worked at Taco Bell about two months before the Petitioner was employed. No employee ever got raises until after the 90-day probationary period elapsed and then an employee would get a standard raise, ten-cents per hour. Later it was fifteen-cents per hour. The Petitioner, Mr. Hall, worked on Josh Bond's shift but never told Bond of any problems involving racial discrimination or criticism of his inter-racial relationship. Mr. Bond established that an employee's promotion speed depended on his work habits and the quality of his performance including the completion of the training manuals or workbooks. Even so, no employee got a promotion merely by completing the training manuals and serving a 90-day probationary period. It depended on the employee's performance, as well as completing the training manuals. Mr. Bond also established that the part- owner of the store, Mr. Carpenter, was at the store one or two hours every day, that he was open to employees talking with him and employees were encouraged to bring their problems to him. Dawn Young worked for Taco Bell for four or five years. She is the daughter of Mr. Carpenter, part-owner of the Respondent corporation at times pertinent hereto. Dawn Young started working as a crew member, received training and did shift work at first. She became a general manager after working for Taco Bell for three years. Shalinda McRae, who is Black, was the Manager who trained Dawn Young as did Shalinda's sister Eileen McRae. When Dawn Young was made Manager of the Milton, Florida store, involved in this case, Eileen McRae was first offered the job as General Manager. She turned it down for family-related reasons. Shalinda McRae, was given the job of General Manager of the Taco Bell store in Pace, Florida, nearby. Dawn Young and Eileen McRae interviewed the Petitioner and decided to hire him when he first came to work. During his tenure, however, they had problems with his being absent from work and not wearing his uniform properly. The testimony of Dawn Young and Eileen McRae establishes that the Petitioner never completed his training manuals; nor did he complete the required 90-day probationary period. Rather, the Petitioner voluntarily left employment to take a job at the local convalescent center, which could pay him more money than the Respondent could. He never indicated to anyone in management nor to co-worker Bond that he had any racial or other issue upon which he disagreed with the Respondent's management. Neither Dawn Young or Eileen McRae ever heard the Petitioner make any racially-related complaints. The company and that store had a consistent racial and sexual harassment policy which requires that they conduct weekly meetings to discuss such matters and to advise employees of how to avoid them. Racial discrimination was not tolerated at any of the Taco Bell stores owned by the Respondent, including the one where the Petitioner worked. In fact, Mr. Carpenter once fired an employee summarily, on the first offense, for purportedly making a racially derogatory joke. Eileen McRae has worked for Taco Bell for 10 years, seven years as an Assistant Manager or Manager. The Petitioner worked on her shift. She and her sister Shalinda, now the Manager of another store, helped to train the Petitioner. Eileen McRae, like Dawn Young, never heard the Petitioner complain of any racial statements and never heard any racially derogatory comments made concerning who the Petitioner, or any other person, was in a personal relationship with. The Petitioner never complained to her or other supervisors of any racial issues in either a verbal or written complaint. She has never heard anyone, Dawn Young included, speak in a negative way concerning the Petitioner being involved with a woman of another race or any woman working for the company being involved with a man of another race, nor make disparaging comments concerning the race of any child of such a couple, including the child of the Petitioner. Eileen McRae established that all Black employees are treated with respect at the Taco Bell store and by the Respondent corporation. Ms. McRae knows of no instance concerning any staff member where an issue was raised or derogatory statements made concerning inter-racial dating, inter-racial marriage or people having children of mixed race, during the course of her employment for the Respondent corporation. Eileen McRae's daughter dates a person of another race herself and Eileen McRae testified that as far as she is concerned it is a matter of "to each his own." The testimony of both Josh Bond and Dave Carpenter, the part-owner of the store and the Respondent corporation, established that all employees are required to train in each phase of the employment at a Taco Bell store. This was what the Petitioner was doing during the course of his duties there. He was not merely given extra duties for which he was not compensated; all employees, of all races, have to learn to perform every job at the Taco Bell store, as part of their training preparatory to the possibility of being promoted. In fact, the 90-day probationary period was considered a 90-day training period in which new crew members would learn every job in the store. Dave Carpenter, the part-owner of the Respondent corporation and the ultimate supervisor of the subject Taco Bell store, is a retired Master Chief in the U.S. Navy. Much of his naval duties involved working in the personnel branch. He thus has extensive experience teaching training courses in race relations. Using this experience, he developed a policy, as a corporate officer of the Respondent, of tolerating no form of racial discrimination at any of the Respondent's stores. He and the corporation had frequent training sessions in racial relations, on almost a weekly basis. He has had no reports from employees, his managers, or through his own observation, of any problem involving racial discrimination or racially-related derogatory comments as alleged, or of any other nature, at the subject Taco Bell store during the Petitioner's tenure there or before or after. In summary, it is not found that any employees of any race were promoted who were less entitled to it than the Petitioner, in terms of tenure, training or performance. It is determined that the Petitioner was not required to do extra duties for which he was not compensated, since all employees were required to be trained and therefore work in all functions required of any employee at the Taco Bell store. It is also found that the Petitioner was not eligible for promotion because he had not finished his 90-day probationary period and did not finish the training manuals and testing required to be completed. Moreover, it is found that preponderant evidence has not been presented that the purported racially derogatory statements were made concerning the Petitioner his fiancé and their child, or concerning Lori Wilson, who testified for the Petitioner, about her inter-racial relationship and her mixed- race child (Wilson is White). Both the Petitioner and Wilson have litigation pending against the Respondent corporation and it is deemed that their testimony may be colored by that adversarial relationship. The witnesses and testimony presented by the Respondent (Eileen McRae, Dawn Young, Josh Bond and Jennifer Day in particular) are deemed more creditable.
The Issue Whether Golden Corral discriminated against Mark Turner on the basis of his race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented, the undersigned makes the following findings of material facts: At the time of the incident, Turner was a 56-year-old African-American. He is married and has a six-year-old daughter. He worked for General Motors for 30 years on the assembly line and also worked as a line coordinator. In 2011, he retired and purchased a condominium in Homestead, Florida, where he lives with his wife and daughter. After he retired, he purchased and now rents several condominium units in Columbia, South America. He visited the Golden Corral restaurant approximately one time each month with his family. The Golden Corral restaurant offers a buffet to its patrons. However, there is a "No Sharing" policy posted on a placard in the lobby. See Resp.'s Ex. 2. The sign states the following: Please, no sharing. In the interest of keeping our food prices as reasonable as possible, we ask that you please not share food from the Golden Corral buffet. To-go meals from the buffet are available for purchase. Ask your server. On an unspecified date in October 2014, a customer complained to the staff, that another customer (later identified as Turner) was taking food from the buffet and putting it in plastic Tupperware containers. The complaining customer was a female African-American. Based on this information, Feliciano watched Turner approach the buffet and put items of food in a Tupperware container. This was also being done by a female identified as Turner's wife. During the first incident, Feliciano took Turner aside to a private room, explained what he had observed, and asked him to leave the property. It was Feliciano's testimony that Turner did not deny taking food. He also told him he was expelled from the restaurant. Feliciano testified that Turner was a frequent guest, and, so, Feliciano was able to positively identify him as the person violating the no sharing policy. When Turner and his family left the restaurant, Feliciano noticed that he was carrying re-usable, grocery-type bags with him capable of storing Tupperware containers. Several weeks later, Feliciano observed Turner in line attempting to enter the restaurant. Feliciano approached Turner and reminded him that he had been expelled and instructed him to leave the premises. This was done without incident. Apparently, there was video surveillance available which would have captured some or all of the incidences in question. However, no photographs or video surveillance were offered into evidence by either party. Feliciano had worked at this restaurant for approximately ten and one-half years. The company grants fairly wide discretion to its managers to take action against customers who violate rules. That discretion ranges from calling the police to expelling patrons under appropriate circumstances. The president and CEO of Golden Corral testified that the company offered general training to staff members related to problem customers. He related that there was "lots of training books and videos" given to general managers and staff regarding how to handle problematic customers and patrons. However, there was no training offered on specific adverse situations. The company does offer "discrimination training" to its staff and general managers during meetings and company conferences. A company named Speilman1/ out of Winston Salem, North Carolina, provided this training. The president spoke with Turner on the telephone. He told Turner he concurred with the general manager's decision to expel him. During the course of this telephone discussion, Turner did not deny taking food and asked if he could come back to the restaurant "if he stopped." (The context of this comment was if he stopped violating the no sharing policy.) Upon further inquiry, the president testified that he was absolutely sure that Turner told him this. Feliciano testified that Golden Corral serves people of all races and backgrounds. He stated that the "no sharing" policy was prominently displayed at the restaurant. The customer, who complained about Turner's conduct, said that she watched him fill Tupperware containers with chicken and ribs. She mentioned that this was very upsetting to her. Feliciano also checked the plates being removed from Turner's table and saw that there was "residue" of chicken and/or ribs on the plate, but no empty bones on the plate. (He concluded that since no bones had been left on the plate, this confirmed that the plates had been used to carry food back to the table and then placed in a container or bag.) Feliciano stated that Golden Corral did not deny services to Turner because of his race. He gave an example when two Hispanic women had been expelled for the same conduct. The undersigned reviewed Respondent's Exhibit 4, entitled Investigative Memorandum FCHR number 201500480. The investigation conducted by FCHR appears to be thorough and comprehensive. All parties were interviewed, affidavits were collected, and a witness was interviewed. This is a de novo proceeding. Based upon the evidence presented, there does not appear to be any basis to dispute the investigative findings and recommendations of the agency, and the evidence presented during the final hearing before the undersigned was consistent with the information collected by FCHR during its investigation.
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 dismissing Turner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 30th day of November, 2015.
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
