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.
Findings Of Fact TSSO, Inc., owned an Applebee's Neighborhood Bar & Grill franchise on Bayou Boulevard in Pensacola, Florida. The franchise was acquired by Concord Hospitality, Inc., on December 3, 2001. Applebee restaurants are divided into two areas. There is the front of the restaurant where the bar and dining tables are located, and the back of the restaurant where the kitchen is located. The front of the restaurant is staffed by bartenders, hostesses, and servers who are paid a reduced hourly rate and who depend on tips as part of their compensation. The kitchen is mainly staffed by a midline cook, who basically runs the cooking line; a broil cook, who works the broil area; a fry cook, who works the fry area; prep cooks, who prepare the food on a daily basis; and an expediter, who sets the plates to go out in the front of the restaurant. In addition to their specific duties, the kitchen staff have additional duties. These include cleaning the parking lot, cleaning the freezer, and washing dishes. All kitchen staff share in the additional duties. Unlike the staff in the front of the restaurant, the kitchen staff is paid a regular hourly rate. The kitchen staff is supervised by a kitchen manager. The kitchen manager was responsible for preparing a daily prep list, placing food orders, delegating tasks to kitchen staff, and ensuring that the kitchen employees were doing their tasks. The Petitioner worked as a prep cook in the kitchen from August 13, 1996 to September 14, 2002. During her employment, the Petitioner received at least six raises which included a fifty cent raise on July 17, 1998; a twenty-five cent raise on February 12, 1999; a fifty cent raise on August 27, 1999; a fifty cent raise on December 31, 1999; a fifty cent raise on December 15, 2000; and a twenty-five cent raise on March 9, 2001. The Petitioner, who is black, was one of the highest paid employees out of the fifty employees who worked in the kitchen in 2001. There were five employees who worked in the kitchen that were paid more than the Petitioner. Two of the higher paid employees were black. There were twenty-three white employees in the kitchen who were paid less than the Petitioner. Employees could become certified trainers. Trainers provide training and guidance to new employees. In order to become a certified trainer, the employee has to go through a training process. Employees who become trainers have to be re- certified on an annual basis. Employees who work in the front of the house are offered a dollar an hour raise as an incentive to become a trainer, to make up for the loss in tips they incur when training new employees. Kitchen employees do not receive a dollar an hour increase as an incentive to become a trainer since they are higher paid employees. Kitchen employees who become trainers receive superior schedules, more hours, and the opportunity to advance with the company. Petitioner, JoAnn Merlin (a white female) and Robert Roberts (a white male) were all kitchen employees who became certified trainers. Merlin and Roberts, like the Petitioner, did not receive a dollar an hour increase when they became certified trainers. After receiving her training certificate on October 23, 1999, the Petitioner claims she trained new employees in the prep area. However, there was very little turnover with prep cooks while the Petitioner was employed. Moreover, the Petitioner has no idea how much training she provided to other employees. The Petitioner has no idea how much back pay she claims she is owed. The Petitioner claims that she was assigned duties that white employees were not assigned to do. In particular, she claims that she had to clean the parking lot and the freezer. However, the Petitioner admitted in her testimony that white employees cleaned the parking lot and freezer. Pat Brown, Merlin and Roberts (all white employees) testified that they cleaned the parking lots. Roberts testified that he tried to rotate the responsibility of cleaning the parking lot each morning. Roberts was the one who primarily cleaned the freezer. On some occasions he had whoever was not busy in the kitchen clean the freezer. For example, Mike Valencort, a white employee who worked as a line cook, cleaned the freezer in addition to Roberts. No one was singled out, because of their race, to clean either the parking lot or freezer. The Petitioner cleaned the parking lot maybe five to six times during her employment. The Petitioner only cleaned the freezer two to three times in a three-month span prior to 2000. As kitchen manager, Mr. Roberts was responsible for preparing a daily prep list. The prep list needed to be prepared before the kitchen employees came to work. Roberts would delegate the responsibility to an experienced line cook, normally Merlin, on Mondays when he was occupied with completing inventory. He delegated to Merlin because she had more experience, knew what menu items were selling, and was trained on all the stations in the kitchen. The Petitioner was not qualified to do the prep list. She had only prep cook experience and did not know what menu items were selling. CONCLUSIONS_OF_LAW The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.569, Florida Statutes. The Petitioner alleges that the Respondent treated her differently than white employees because of her race, with respect to trainer's pay and job assignments, and that the Respondent's actions violated Chapter 760, Florida Statutes, and Title VII. Chapter 760 is patterned after Title VII and is to be construed using federal case law interpreting Title VII. Florida State University v. Sondel, 658 So. 2d 923 (Fla. 1st DCA 1996); Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); and Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991). The Petitioner has the burden of establishing that the Respondent's actions were motivated by a discriminatory purpose, either through direct evidence or circumstantial evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993). The Petitioner has not presented any direct evidence of discrimination. Accordingly, the Petitioner's claim is analyzed using the "McDonnell framework." McDonnell-Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2nd 668. Pursuant to McDonnell, Petitioner has the burden of establishing a prima facie case of race discrimination. If the prima facie case is demonstrated, then the Respondent must articulate a legitimate, non-discriminatory reason for its actions. Once the Respondent establishes a legitimate, non-discriminatory reason, then the Petitioner must show that the proffered reason is pretextual. The ultimate burden of persuasion remains at all times with the Petitioner. Texas Department of Community Affairs v. Burdine, supra.; St. Mary's Honor Center v. Hicks, supra. In order to establish a prima facie case, the Petitioner must prove by a preponderance of the evidence that: (1) she belongs to a protected class; (2) she was subjected to an adverse employment action; (3) the Respondent treated similarly situated employees outside the protected class more favorably; and (4) she was qualified to do the job. Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1310 (11th Cir. 1998). The Petitioner has failed to establish a prima facie case with respect to the trainer's pay because she has not shown she was subject to an adverse employment action. The evidence clearly demonstrates that kitchen employees did not receive a dollar an hour pay increase for becoming a trainer. It is also undisputed that white kitchen employees who became trainers did not receive trainer's pay, as evidenced by Merlin's and Roberts' testimony. The Petitioner has also failed to establish a prima facie case with respect to trainer's pay because she has not shown similarly situated white employees were treated differently. As noted above, white kitchen employees who became trainers did not receive a pay increase. Employees who worked in front of the restaurant were not similarly situated because they, unlike kitchen employees, were paid reduced hourly rates and depended on tips as part of their compensation. Even if the Petitioner had established a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for not giving the Petitioner a pay increase for becoming a trainer. More specifically, trainers who worked in the front of the restaurant were given a dollar increase to compensate them for tips they lost as the result of time spent training new employees. Furthermore, the kitchen employees were given other incentives for becoming a trainer, such as, better shifts, more hours, and more opportunity for promotion, The Petitioner has failed to come forward with any evidence showing that Respondent's articulated reason is pretextual. The Petitioner has likewise failed to establish a prima facie case of discrimination with respect to job assignments. More specifically, the Petitioner admits that white employees had to clean the parking lot and freezer. It is also undisputed that white employees cleaned the parking lot and the freezer more often than the Petitioner. The Petitioner cleaned the parking lot five to six times over a six year period of employment. The Petitioner cleaned the freezer two to three times in a three-month span prior to 2000. Assuming the Petitioner could establish a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for how it assigned these responsibilities. Cleaning the parking lot was done on a rotational basis. Employees who were not busy were selected to clean the freezer on the occasions when Roberts did not do it himself. The Petitioner has failed to come forward with any evidence showing that the Respondent's articulated reasons are pretextual. The Petitioner's claim with respect to the freezer also fails because those incidents occurred more than 365 days prior to filing her charge of discrimination, Finally, the Petitioner has failed to establish a prima facie case of discrimination with respect to preparing the prep list. The evidence shows that the Petitioner was not qualified to do the prep list because of her limited experience. Assuming the Petitioner could establish a prima facie case, the Respondent has articulated a legitimate, non- discriminatory reason for selecting Merlin to do the prep list. Merlin was selected to do the prep list because she had more and broader experience than the Petitioner. More specifically, the Petitioner's experience was limited to the prep area while Merlin was trained on all stations in the kitchen and knew what items were selling. The Petitioner has failed to come forward with any evidence showing that the Respondent's articulated reasons are pretextual. Finally, even if the Petitioner had established a claim of discrimination, she failed to establish her claim for damages. The Petitioner did not present any evidence as to the amount of damages and, when asked on cross-examination, the Petitioner had no idea as to the amount of any back pay.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 15th day of July, 2003. COPIES FURNISHED: Rosa Foster 3260 Keating Road Pensacola, Florida 32504 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Jackie Kilpatrick, worked for Respondent, Howard Johnson Company, for approximately eighteen years in the capacity of waitress. Petitioner is a black woman whose birth date was February 10, 1946. Kilpatrick in the relevant time period worked the initial shift of a three shift work cycle in the restaurant which is located on West Tennessee Street, Tallahassee, Florida. That shift was the 6 A.M. to 3 P.M. morning cycle. Petitioner was one of several waitresses working that shift all of whom had long-standing service with Howard Johnson Company. Petitioner was the only black waitress; however, the cook on that shift was also black. As an employee of Howard Johnson, Petitioner enjoyed a good reputation among her fellow workers and customers of the restaurant with the exception of one customer, in incident which will be subsequently discussed. In early 1982, a meeting was held in the Howard Johnson restaurant in which the Petitioner indicated that she felt the restaurant manager, a Ms. Williams, gave preferential treatment to a white employee. The District Manager for Howard Johnson, Ramon Jimenez, was involved in the meeting and was left with an unfavorable impression of the Petitioner's conduct related to the remarks made to Ms. Williams. Shortly thereafter, Ms. Williams was replaced as the store manager for the Howard Johnson, West Tennessee restaurant. Her replacement, Lionel Robbins, felt that the management of the subject restaurant under the direction of Ms. Williams had not been acceptable and he set about his management task by informing the waitresses on the first shift that he was not there to be their friend. He stated that he was there to, in effect, clean up the operation. Making known his sentiments, he on a number, of occasions indicated to those waitresses, to include the Petitioner, in individual conversations with those employees, that "You can't teach an old dog new tricks". He had mentioned to Mary Mills, a waitress in the first shift, with total service of 25 years with Howard Johnson, that he was there to get rid of people on the first shift. Robbins constantly pressured the first shift waitresses on the question of their performance. He reduced their work hours and assigned more available work hours to new waitresses who he had hired. The new waitresses were hired after Petitioner was dismissed from her employment. Those new waitresses were somewhat younger than the waitresses on the first shift. The original waitresses on the first shift were from 35 to 55 years of age and the new waitresses who were hired were 18 to 23 years of age. During Robbins' time as store manager, in addition to Petitioner, he fired Bernice Johnson, a white waitress, of 16 years service with Howard Johnson who had been employed on the first shift with Kilpatrick. Bernice Johnson's dismissal was within four weeks of Robbins assignment as restaurant manager. Robbins' treatment of the Petitioner was provocative. This aura of provocation commenced from the first day that Robbins met the Petitioner. On that occasion, which took place in the restaurant on March 25, 1982, Robbins witnessed a disciplinary conference between Jimenez and Kilpatrick complaint had been made by a Mrs. DeCarlo, the owner of a privately run Howard Johnson motel operation adjacent to the restaurant, and this was the subject of the disciplinary conference. DeCarlo indicated that the Petitioner would not serve her when DeCarlo came to the restaurant. On the date of the conference Jimenez had prepared the employee reprimand which is Respondent's exhibit number one admitted into evidence, prior to the conference. He presented it to Kilpatrick and indicated to her that it was her responsibility to serve Mrs. DeCarlo or any patron, regardless of the desires of the employee waitress. Kilpatrick indicated that she surmised that DeCarlo really did not wish to be served by her. The conversation became somewhat heated and Robbins interceded and indicated that the Petitioner might wish to transfer to another Howard Johnson restaurant in Tallahassee, Florida. The suggestion was not well received by the Petitioner, in that she indicated an unwillingness to accept a transfer. Robbins indicated that if the Petitioner could not get along with Jimenez, who was Robbins superior, then she was going to have an attitude problem toward Robbins. He suggested the move to the Apalachee Parkway restaurant in Tallahassee, because he felt there was already a personality conflict developing. Petitioner stated that she felt that Robbins wanted to remove her because he was prejudiced. Eventually Robbins talked about the possible termination of the Petitioner's employment. The matter was finally resolved following a discussion with another official within Howard Johnson Company, a George Gover, by telephone call in which it was decided that the reprimand would stand, but the Petitioner would be allowed to continue her employment. From the point of this encounter on March 25, 1982, until the Petitioner's dismissal on April 27, 1982, the working relationship between Robbins and the Petitioner was strained. Between the time of the March 25, 1982 incident, in which the Petitioner was reprimanded, and April 27, 1982, Petitioner and other waitress employees in the first shift were the subject of continuing criticisms by Robbins. Robbins had the impression that Kilpatrick was "too set in her ways" and would not cooperate with his management scheme. 0n the morning of April 7, 1982, Petitioner had to make a number of adjustments in the station where she serves patrons because of oversights of the prior shift of waitresses. She had concluded this activity when Robbins arrived around 8 AM. He observed the "set up" of the tables and found them to be lacking, in his estimation. One matter that struck his eye was the fact that the silverware on one of the napkins was "kind of astray". He spoke first with the waitress Donna Cooper who referred him to the Petitioner. Petitioner indicated that the problem was one related to the prior shift to which the manager, Robbins, retorted that the Petitioner was responsible. An argument ensued between the Petitioner and Robbins and they retired to Robbins office which was in the area of the kitchen. While in the kitchen Petitioner kept referring to the fact that the problems in the restaurant were not those caused by the shift on which she worked. Robbins was insisting that the problems were related to the overall operation. In the course of this conversation, a discussion was entered into related to a reprimand which the Petitioner had received, along with other waitresses, related to the sufficiency of the guest checks as to errors in computations. A copy of that reprimand may be found as Respondent's exhibit's number two admitted into evidence. Petitioner did not wish to sign the written reprimand although she acknowledged making mistakes. She remarked that no one was perfect and Robbins stated that she would have to come closer to his standards of performance. Robbins then asked the Petitioner to transfer from the restaurant and she declined. Robbins then indicated that he was doing to reprimand her for the events of that morning. Her response was that if he reprimanded her that he might as well take her off the schedule, meaning remove her from the shift. In return Robbins struck her name from the work schedule and began calculating her final pay and told the Petitioner that she was discharged. The basis of the discharge was related to the impression by Robbins that the Petitioner was insubordinate. Prior to the dismissal or discharge, in addition to the reprimand related to the dining room table setting, a reprimand for insubordination was presented to the Petitioner. She refused to sign this latter document. A copy of that reprimand may be found as Respondent's exhibit number three admitted into evidence. At the time of her discharge the Petitioner was working 34-35 house a week at a rate of $2.01 per hour together with $35.32 tips per week. Since her discharge the Petitioner has attempted to find work by checking with the State Employment Agency; the local School Board; Rose Printing; with a gentlemen named Holiday, related to custodial work; with a person Joe Williams and another individual who works at Morrisons Cafeteria. These efforts were not successful. Petitioner has not pursued the idea of gaining work as a waitress in view of her desire to participate in church work on each Sunday. Petitioner does not wish to work in any Howard Johnson restaurant other than Tennessee Street, Tallahassee, and specifically would not wish to work in the Apalachee Parkway restaurant in Tallahassee, Florida. Furthermore, the Petitioner does not wish to work at the Tennessee Street restaurant if Lionel Robbins remains as manager. At the point of final hearing, Robbins was still serving as manager of the Tennessee Street restaurant. Petitioner has been unemployed since the time of her dismissal from her job at Howard Johnson restaurant.
The Issue Whether or not the Respondent, Lewis C. Medlin, is guilty of a violation of Section 467.14(1)(c), Florida Statutes, and Rule 21B-5.02(5), Florida Administrative code, for affixing his name and seal as an architect to the plans, drawings and/or specifications for a Taco Bell Restaurant, in Orange Park, Florida; when said plans, drawings and/or specifications were not prepared by him or under his responsible supervising control; said act taking place on or about March 7, 1977.
Findings Of Fact Lewis C. Medlin, Respondent, is the holder of Certificate of Registration no. 2603, as a architect, held with the State of Florida, Division of Professions, Department of Professional and Occupational Regulations, Florida State Board of Architecture. While practicing as an architect in the State of Florida the Respondent was employed by Taco Bell. Taco Bell had hired the Respondent to assist them in gaining the approval of the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants on the question of certain plans necessary to complete one of the restaurants of Taco Bell to be built at Orange Park, Florida. It was also necessary for the Taco Bell chain to acquire the approval of the local building officials in Orange Park, Florida. In pursuit of this employment the Respondent was involved with a set of plans, specifically, blue line prints which were identified and admitted into evidence as Petitioner's Exhibit 2. It is this Petitioner's Exhibit 2 which is addressed by the administrative complaint of the Petitioner. The Petitioner is claiming through the administrative complaint that Lewis C. Medlin affixed his name and seal as an architect to the plans, drawings and/or specifications for Taco Bell Restaurant, Orange Park, Florida, when said plans, drawings and/or specifications were not prepared by him or under his responsible supervising control, the plans being Petitioner's Exhibit 2. This action, according to Petitioner, constituted violations of Section 467.14(1)(c), Florida Statutes, and Rule 21B-5.02(5), Florida Administrative Code. The facts in the case show that Petitioner's Exhibit 2 is a modification of Petitioner's Exhibit 1. Petitioner's Exhibit 1, admitted into evidence is a set of plans which were prepared by Sheryl Crandall, an employee of Taco Bell. In the early part of 1977, to include the time in which Medlin was employed by Taco Bell, Crandall held the position of project designer. She had received a B.A. Degree in Commercial Art from Northern Illinois University and had certain drafting experience. The Petitioner's Exhibit 1 had been examined by and upgraded by Carl W. Carlson, an individual, licensed as an architect in Florida at the time of his involvement with the Petitioner's Exhibit 1. This Petitioner's Exhibit 1 was modified by Crandall and used as a basis of Petitioner's Exhibit 2, the subject of this hearing. Carlson had given Taco Bell the permission to use his work product as it pertains to Petitioner's Exhibit 1 and any modifications which might come out of that basic set of plans. In addition, he well expected Taco Bell to hire local architects in the various states within the United States where Taco Bell was doing business. Carlson further expected that the architects hired by Taco Bell would make such use of the plans he was involved with, to the extent necessary to achieve the ends of his client Taco Bell. Lewis C. Medlin, sometime in early March, 1977, took the basic plans which are Petitioner's Exhibit 2, that had been submitted to him by Sheryl Crandall under the terms of his employment with Taco Bell, and made certain red line changes to the blue line prints. Medlin did not redraft those prints, nor did he supervise the work done by Crandall or the precursor to the Petitioner's Exhibit 2, which is Petitioner's Exhibit 1. After making the red line changes to the Petitioner's Exhibit 2 and completely reviewing that document, Lewis C. Medlin affixed his name and seal as architect. The question then becomes one of whether the act of affixing his name and seal as architect under those circumstances, constitutes a violation of Section 467.14(1)(c), Florida Statutes, and Rule 21B-5.02(5), Florida Administrative Code. The pertinent part of the statute in question reads as follows: Revocation of registration certifi- cate; reinstatement procedure, process, attorneys and counsel. - Any architect's certificate of regi- stration issued in accordance with the provisions of this chapter shall remain in full force until revoked for cause as pro- vided in this chapter. Any architect's registration certificate and current renewal may be suspended for a period not exceeding 12 months, or may be revoked by the unanimous vote of the members of the board setting, with a minimum of four members, in any hearing for: * * * Affixing or permitting to be affixed his seal or his name to any plan, specification, drawing, or other related document which was not prepared by him or under his responsible supervising control; (The citation of Rule 21B-5.02(5), Florida Administrative Code is not germane to the substance of the violation and merely deals with the procedural requirements on the part of the Petitioner. Therefore, further reference to that provision is not necessary.) The key to the resolution of the issue in this cause lies in the analysis of the terms "prepared" and "responsible supervising control". This terminology has been addressed in the case of Markel v. Florida State Board of Architecture, 268 So.2d 377, (Fla. 1972). This case involved the disciplining of an architect in the State of Florida for allowing his name and seal to be affixed to certain documents which had been prepared by non-architects operating outside his control and supervision. In that particular case the initial contact with the client and the bulk of the drafting was done by the non- architect. Markel's involvement was to the extent of reviewing those plans drawn by the nonprofessionals and affixing his name and seal. The court in Markel, in addressing the question of whether this review constituted supervision, stated that it would be a "close" question. However, after considering the matter the court held that the after-the-fact ratification of a nonprofessional's drafting, would constitute approval of the prior unsupervised work product of a non professional and was felt to he alien to the standards of the architectural profession. Therefore the action taken by Markel was felt to be in violation of Section 467.14(1)(c) Florida Statutes. It is evident that the drawing in question in the case at bar was not prepared by Medlin, in the sense of a line by line production or reproduction by his hand. Nor was the drawing prepared in his office where he could make periodic checks of the work product of Ms. Crandall. Nonetheless, his review of the questioned document and the changes which he made constitute sufficient compliance with the law in terms of calling for his preparation and responsible supervising control. Medlin did in fact "prepare" the documents to which his name and seal were affixed as an architect and responsibly supervised and controlled that document, when perceived in the sense of making the document ready for use by his client and by the various governmental officials who would need to approve the plans. The case at bar is distinguished from that in Markel, supra, because of Medlin's direct contact with his client; the involvement of professionals in the preparation of the base document; and the fact that this close question inures to the benefit of the Respondent and not the agency. Moreover, any other result would seem to defeat the purpose of this form of regulation of the acts of the members of a profession; in that it would create unreasonable expense and hardship for the clients of this profession, without promoting any form of reasonable protection of the public against the bad acts and motives of the members of the profession or those persons with whom they may be in league. Consequently, there has been no violation of Section 467.14(1)(c), Florida Statutes. The undersigned has received and reviewed the Proposed Recommended Orders of the parties end has specifically incorporated the substance of those Recommended Orders herein, with the exception of the Conclusions of Law and Recommendation of the Petitioner which are rejected for the reasons set forth in this Recommended Order.
Recommendation It is recommended that the action by administrative complaint against Lewis C. Medlin, the Respondent, be dismissed. DONE AND ENTERED this 4th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Selig I. Goldin, Esquire Post Office Box 1251 Gainesville, Florida 32602 Frederick B. Tygart, Esquire 609 Barnett Regency Tower Regency Square Jacksonville, Florida 32211
The Issue Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says: "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;" The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January 20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.
Recommendation It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.* * RO issue date of 2/22/77 was obtained from the docket sheet. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Franklin D. Boockholdt P. O. Box 433 Hilliard, Florida 32046
