Findings Of Fact The hearing proceeded and testimony was taken from Dr. Pillot, Mr. Bayard, and Mr. Brown regarding the composition and organization of the classified non-instructional employees of the school system. There are approximately 900 employees in the county's classified service who are all potential members of the employer group. This total number will be reduced because of lack of funds. Column A below shows the breakdown of employees by general job classification; Column B shows the number of employees after reductions are made. All figures taken from Exhibit 2. A B Secretarial/Clerical 174 167 Food Service 157 157 Custodial/Delivery 200 159 Maintenance 75 67 Teachers' Aides 12 1/ Data Processing 12 12 Transportation 93 2/ 93 There are 716 employees in the aforestated classifications. Approximately 525 employees would be encompassed in the group sought by the Petitioner. The clericals, teachers' adies, and data processing personnel total 191 employees. The Intervenor seeks to represent all 716, however, a unit composed solely of clericals would represent roughly 27 percent of the total. The figures used above are not adjusted for employees who are managerial, confidential, or "supervisory". ORGANIZATION The complete and detailed organization of the school system is set out in Exhibit 20, however, the system is generally organized as follows: | SCHOOL BOARD | | | | |Superintendent | | Superintendent | | | | | | Staff's | | | | | | | | Associate | | Director | | Associate | |Superintendent | | Data | | Superintendent | | Business | | Processing | | Instruction | | | | | | | | | | | | | | | | |Director | |Director | |Director | |Coord.| |Coord.| |School | |Transpor-| |Facilit- | | Finance | | Food | |Purch-| |Prin- | | tation | | ies | | | | Serv.| | asing| | cipals| | | | | | | | | | | | | | | | | | | | Bus | | Food | | Head | |Teachers'| |Clerical| |Drivers| |Service| |Custodian| | Aides | | Staff | | | |Manager| | | | | | | | | | | | | | | | | The system is basically broken into two portions, one dealing directly with educational services and the other with support services. The Data Processing Unit reports directly to the superintendent and performs work for both education and support. The support services branch contains the staff directors and administration for transportation, maintenance, food services, finance and purchasing. However, bus drivers from transportation, custodians from facilities, and food service employees are under the direction, directly or indirectly, of the principal of the school to which they are assigned. Principals are also responsible for the supervision, directly or indirectly, of the clerical staff and teachers' aides assigned to their school. JOB CLASSIFICATIONS AND DUTIES Secretarial and clerical personnel are found throughout the school system's organization, at various levels of the administrative staff and at the schools. On the staff they perform regular office clerical duties and at schools they perform bookkeeping, secretarial, maintain records of registration and attendance, and operate switchboards. There were at the time of hearing 174 such positions, however, a reduction of 8 secretarial positions in the central office was programmed. Note the stipulation by the parties and the positions expressed by the parties concerning exclusion of various secretarial positions at p. 398, Vol. II of Transcript. In brief this would exclude the superintendent's two secretaries, the secretaries of the two associate superintendents and the assistant superintendents. There were differences of opinion regarding whether the secretaries to the principals should be excluded. Based upon the testimony of Mr. Brown, who is a principal, it would appear that the duties of the principal's secretary are not clerical. According to his testimony, his secretary is solely in charge of specific administrative functions such as athletic ticket sales, registration and eligibility of athletes, etc. It would appear that she has broad powers and discretion in performing these tasks under the general supervision of the principal. Based on his testimony, a principal's secretary is more than a typist, and performs the functions of am administrative assistant to the principal administering specific programs under his direction. DATA PROCESSING There are 12 Data Processing employees. They perform various functions directly relating to the programming, operation, and analysis of the data processing function. The unit is under the control of a director, however, he reports to the superintendent as opposed to the associate superintendent for Business. Although the parties generally would exclude the other directors as managerial, they did not expressly agree to the exclusion of the director of Data Processing. The Hearing Officer cannot see any substantial difference in function which would warrant treating this position differently from the other directors. Because he reports directly to the superintendent, he actually holds a higher position in the system than other directors. The Data Processing Unit is located at the central office. TRANSPORTATION The Transportation Division is a part of the business branch, and is physically located adjacent to the central office. This division is responsible for school bus transportation and employs 116 drivers of which 93 are employed by tie system solely as drivers. There are 23 drivers who are also employed in some alternate capacity by the school system. The division is responsible for route planning and driver assignments. Drivers work approximately five hours a day and may be assigned two to three routes for different schools. However, while driving a particular route they are responsible to the principal of that school. In that respect the principal has effective powers of discipline through the Director of Transportation. In the director's office there are am assistant director, route coordinator, and assistant route coordinator for south county. There was mention of a chief mechanic who assigned work on the buses, however, there was no testimony relative to a mechanical section although the superintendent indicated that school system employees did perform the maintenance. P. 72, Vol. I. FACILITIES DEPARTMENT This is the largest department having approximately 250 employees. The department consists of the Planning, Inspection, Maintenance, Signal Repair, and Custodial Sections. The Planning Section consists of an architect, who is excluded from the unit by the parties, and two draftsmen. The draftsmen have the necessary training or experience to perform engineering drafting. They were sought by Petitioner and Intervenor for inclusion in the proposed unit. The Inspection Section is actually one inspector who inspects all construction for compliance with specifications and applicable codes. The parties stipulated to his exclusion. The Signal Repair Section consists of the supervisor, who was excluded by stipulation, and 7-9 repairmen who worked on communications equipment, office machine repair, and audio visual equipment. The section is divided into signal and office machine and audio visual repair subsections. The repairmen are not interchanged between the subsections. MAINTENANCE SECTION This section has the most complex organization and varied functions. It is supervised by the supervisor of maintenance. It is divided into three subsections: mechanical, structural and south county. Each subsection is under the direction of a supervising foreman. All of the aforementioned positions are excluded by stipulation of the parties. Mechanical Subsection has 15-18 employees who work in one of the three trade arena found in the subsection: plumbing, electrical and air conditioning. Each trade area has a working foreman. A locksmith, who is a skilled worker, is normally assigned to carpentry. Grounds, which was formerly a separate section, is now a subsection and the working foreman in charge of grounds does the work formerly done by the supervising foreman of grounds, and the same job performed by the other supervising foremen but he receives a lower salary rate. The Petitioner and Intervenor would not stipulate to his exclusion. There are 8-10 skilled and semiskilled workers in grounds. There are no specific job titles in grounds. The South County Section employs 8-10 persons. This is a separate suborganization with one administrative secretary. There are no working foremen. The employees represent the various skills found in the headquarters sections, performing all maintenance functions on school facilities in South Sarasota County. The shop facility is supervised by the shop foremen who supervises 3-4 skilled and semiskilled employees who work on automobiles, welding, and steel fabrication. There are 5-6 school mechanics who perform general repairs and are on the Facilities Division payroll but who rotate around to the various schools and work directly for the principals. They are assigned duties by and report to the principal of the school at which they are working. These employees have carpentry backgrounds. CUSTODIAL SECTION This section is comprised of supervisor, who is excluded by stipulation by the parties, 6-7 roving custodians, and about 175 custodians who are assigned directly to one of the 28 county schools. At each school, the head custodian supervises the custodians assigned at that school. The head custodian receives a higher salary. Although the head custodian does assign work, has the authority to effectively recommend discipline, and evaluates those under him, he also performs custodial functions. The Petitioner and Intervenor would both include the head custodians within the proposed unit. TEACHERS' AIDES Teachers' aides dare not sides to teachers in the truest sense, but perform various duties as assigned by the principal of the school to which they are assigned. These duties may range from clerical to library assistants to hall and bus monitors. They are rated by the principals for whom they work. These positions are apparently funded for a school term and the number authorized may vary; however, a principal may also elect to convert teacher positions into teacher aide positions in order to obtain a greater total number of positions. The number of teacher aides is dependent, therefore, in part on how much money is available for such positions and how many positions are converted by principals. There were no usable estimates of how many teacher aides would be employed in 1975-76. However, since the school year has begun at this time, this would be a valid area for staff inquiry to supplement the record. CENTRAL ADMINISTRATIVE OFFICE The Central Administrative Office of the school system is composed of the following sections or offices and personnel: Superintendent's Office Superintendent 2 Secretaries 2 Associate Superintendents 2 Secretaries Personnel Office Coordinator of Personnel Assistant Coordinator 5 Secretaries Coordinator of Planning Coordinator Secretary Federal Project Coordinator Coordinator Secretary Vocational Adult Education Assistant Superintendent Secretaries Evaluations Coordinator Coordinator Secretary Test Control Clerk Pupil Services Coordinator Coordinator Secretary 4-5 Clerks Media Coordinator Audio Visual Supervisor Clerks Book Processing Department 6 Clerks Although those functional organizations differ somewhat from those depicted in Exhibit 20, they are included to indicate primarily the distribution and functions of clerical personnel within the central office. It should be noted that all of the proposed reductions in clerical staff were to occur at the central office, where 8 positions were to be eliminated. The parties would exclude nonclassified employees which would exclude the various coordinators. FOOD SERVICE Food Service Coordinator This is a staff position within the superintendent's office staff which consists of the coordinator and assistants who are charged with coordination of purchasing and bookkeeping. The coordinator has no direct control supervision over food service personnel who work at schools. At each school there is a food service manager and in some instances, an assistant manager, whose duties are to supervise the food program at that school. The manager is responsible for the financial management, assignment of duties, and has effective disciplinary control of the food service workers at the school. The assistant manager has essentially the same duties when the manager is not present. Because there are several schools without kitchens, food must he brought in for students. These are satellite operations, and have a satellite manager whose duties are similar but not as complex as a manager's duties because there are no cooking facilities. The Petitioner would exclude all three of the foregoing positions, while the Intervenor would include these positions. The School Board has no position regarding these positions. It would appear from the authority vested in the managers that they are solely responsible for the program at their school but report to the principal. The assistant managers and satellite managers have essentially the same duties, authority, and functions. The food service workers work directly for tie food service manager and either cook or prepare food, serve food, or clean up the food preparation and service areas of the cafeteria. They are assisted to 50150 degree by custodial personnel in cleaning duties. There ore approximately 157 food service workers. FINANCE DIVISION Coordinator or Director is responsible for the internal audit functions. He is assisted by several bookkeepers. In addition there is the manger of investments, the payroll office and several special project bookkeepers. PURCHASING DIVISION The coordinator or director of Purchasing is responsible for ordering and warehousing equipment, materials, and supplies for the school system. He is assisted by an assistant who is a working foreman, 3-4 secretary-bookkeepers, a warehouse manager, and several warehousemen. COMMUNITY OF INTEREST In addition to the organization of the school system and the duties of the various personnel discussed above, the following factors also bear on the community of interest of the employees. Clearly all the full time appointed classified employees have the same fringe benefits regarding holidays, retirement, insurance, sick and annual leave. All salaries are established by the same procedure, starting with a study by the staff, a proposal from the superintendent's office to the School Board, and concluding with board amendment, if necessary, and final approval. The five salary schedules in effect are all keyed to a base of the basic instructional salary. Some employees are paid more and some less than starting teachers but that salary range is the base from which non-instructional salaries are developed. Separate salary schedules exist for secretarial-clerical, supervisory, maintenance, custodial, and data processing personnel. The hours worked by various personnel differ. Secretarial-clerical and data processing personnel work 371/2 hours per week, while all other personnel work 40 hours per week. All members of classified service have the same basic right of employment regarding grievances and appeals of personnel action. This report respectfully submitted this 22nd day of January, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent employer is guilty of an unlawful employment practice, by failure to hire Petitioner on the basis of her color and/or national origin.
Findings Of Fact Respondent Advent Christian Village (Village) is an "employer" as defined in Section 760.02(7), Florida Statutes. The Village is a comprehensive retirement community, which offers a range of living options from independent living to long-term care for senior citizens who can afford them. It accommodates 750 residents and 450 employees. Petitioner's Charge of Discrimination and Petition for Relief were based upon "color" and "national origin". Apparently, Petitioner and her qualified representative erroneously understand "color" and "race" to be synonymous. However, neither Petitioner nor anyone else testified as to her race. Petitioner is a very dark- or black-complexioned female. Petitioner testified that she was born abroad, but no national origin was specified by stipulation or by evidence. She speaks with an accent, which was not explained on the record as to national origin. The Charge of Discrimination names her country of origin as Sri Lanka. In August 2002, Petitioner was living in New York. She received a copy of Respondent's notice for a job opening as Director of Food Service, and she applied. Respondent notified Petitioner to prepare for a telephone interview at 9:30 a.m., on August 12, 2002. When the phone call came at 9:47 a.m., Gerald Buchert, vice president of Respondent's Programs and Services Division, asked Petitioner if she had received a videotape he had sent her about the Village. Petitioner had not received the videotape, but she decided to go ahead with the telephone interview, anyway. Petitioner and Mr. Buchert engaged in a 45-minute phone discussion of Petitioner's qualifications. Mr. Buchert was aware from Petitioner's accent that she may have been born abroad. Nonetheless, Mr. Buchert considered Petitioner, due to her experience, credentials, and work ethic, to be a viable candidate for the position of Director of Food Service. It is disputed whether Mr. Buchert urged Petitioner to come to the Florida facility for an in-person interview or whether she volunteered to do so. Respondent did not volunteer to pay Petitioner's way, but before Petitioner and Mr. Buchert hung-up their phones on August 12, 2002, they mutually had agreed to an in-person interview at the Village on September 11, 2002. Mr. Buchert made sure before hanging up the phone that this was a date that Respondent's full interview team would be available. Mr. Buchert also intended to introduce Petitioner, on the date of her in-person interview, to Mr. Jim Humbles, Respondent's President and CEO. Petitioner formed the belief that Mr. Humbles would be part of the interview team. As President and CEO, Mr. Humbles traditionally is only involved in interviews for cabinet-level positions within the Village's management hierarchy. Positions such as vice president are cabinet-level positions. The Director of Food Service position is not a cabinet-level position. It is a position within the Programs and Services Division, which is headed by vice president Buchert. Mr. Buchert was in charge of interviewing and hiring a Director of Food Service. After the telephone interview on August 12, 2002, but on the same day, Petitioner received the video that Mr. Buchert had sent. There is no record evidence of what was contained in this video, and therefore no record evidence of how it represented "people of color" or anyone's national origin, or if it did. Petitioner never viewed it. Through Mr. Humbles' assistant, Mr. Buchert scheduled Mr. Humbles' attendance at lunch on September 11, 2002, in the Village's cafeteria with himself and Petitioner. His assistant placed the lunch appointment on Mr. Humbles' calendar. At some point after the lunch appointment had been placed on Mr. Humbles' calendar, he was invited to take part in the memorial service to be held in the Village chapel on September 11, 2002, to memorialize the victims of 9/11/01's acts of terrorism. Feeling that he would be too rushed to attend both events, Mr. Humbles cancelled the lunch appointment. At the latest, this cancellation was accomplished between Mr. Humbles' assistant and Mr. Buchert's assistant on the day before September 11, 2002. Diane Johnson, Director of Housekeeping Services; Anita Hayes, vice president for the Village's Conference and Retreat Center; and Mr. Buchert, comprised the interview team for the Director of Food Service position. Immediately upon Petitioner's arrival at the Village on September 11, 2002, Petitioner met with the interview team in Mr. Buchert's office. Petitioner was invited to attend the memorial service for victims of 9/11/01's terrorism in the chapel with Mr. Buchert, which she did. After attending the memorial service, as they walked across the parking lot, Mr. Buchert hailed Mr. Humbles, and introduced Petitioner to him. Mr. Humbles, who had just participated in the memorial service, was emotionally overcome. Mr. Buchert noticed nothing unusual, but Mr.Humbles admitted to possibly being uncharacteristically aloof or withdrawn in his response to Petitioner as a result of his emotions over the chapel service. The introduction of Mr. Humbles and Petitioner and their brief conversation lasted only 20 to 30 seconds. Due to the abruptness of her meeting with Mr. Humbles, Petitioner interpreted Mr. Humbles' failure to inquire about her trip from New York and to engage in other pleasantries as a snub of her, personally, and thus, discrimination. Petitioner then went to lunch with Mr. Buchert and the other interview team members in the Village cafeteria. She testified that she saw Mr. Humbles eating in the cafeteria while she was there, and that she considered his non-attendance at the team's table to be a rejection of her candidacy for employment based on race, color, or national origin. Mr. Humbles testified equally credibly that he did not remember being in the cafeteria that day, he only remembered he had previously cancelled his lunch attendance due only to his crowded calendar. Petitioner testified, without refutation, that during lunch, Mr. Buchert said, ". . . in the Village is [sic.] still people who discriminated [sic.] colored people," and Petitioner changed the subject, saying, "What has [sic.] to do with the color if you have experience?" (TR 39) It is inferred that Petitioner considered Mr. Buchert's statement to be an offensive or discriminatory one. After lunch, Petitioner was interviewed for two to three hours, by Mr. Buchert, Diane Johnson, and Anita Hayes. Mr. Buchert is a white male. The two other interviewers are white females. There was no evidence presented of their country of origin, but it is inferred that all three interviewers are native-born Americans. Ms. Johnson was on the interview committee because of her long history as a Village employee. Ms. Hayes was on the interview committee because there was going to be consideration of expanding food service into the Conference and Retreat Center, which she managed. Petitioner and all the interviewers agreed that Petitioner's interview was cordial. After her interview, each of the three interviewers was satisfied that Petitioner met their threshold requirements for the job opening of Food Service Director, which included a minimum of ten years' food service experience and the ability to handle a 250-seat cafeteria and a 42-person assisted living facility. Petitioner was one of only three applicants who were interviewed in-person for the position of Food Service Director. Mr. Clifford Burr, a white American male, was ultimately selected. The record is silent as to the race, color, national origin, and qualifications of the third applicant. Petitioner's interview was the third one. Petitioner's interview process was the same as the interview process for the other two applicants. The interviewers reviewed each applicant's resume before the respective interview. All three interviewers were present for the in-person interview of each applicant. After each applicant's interview, the respective applicant was considered by the interviewers to have met the threshold job requirements. Interviewers Johnson and Hayes did not make the decision as to which applicant should be hired, although they had input. The ultimate decision to hire Mr. Burr was made by Mr. Buchert. Mr. Humbles was not involved in the interview or selection process for the Director of Food Service, and he did not take part in any of the three in-person interviews. He also did not direct whom Mr. Buchert should hire. It was never intended by Respondent that Mr. Humbles should have any input into the hiring process for Food Service Director. (See Finding of Fact 7.) Mr. Humbles, in fact, had no input into the decision to hire Mr. Burr. Having observed the candor and demeanor of Mr. Burr while he testified that he did not meet Mr. Humbles until after he had been hired, that testimony is found to be credible, contrary to Petitioner's proposal that it is not credible. However, this is an insignificant and irrelevant point, inasmuch as Petitioner had met Mr. Humbles prior to her interview. After interviewing Petitioner, who was the last applicant to be interviewed, Ms. Hayes believed both other applicants were more qualified for the position than Petitioner. She was particularly impressed by Mr. Burr's long-term care experience, which went beyond merely managing a dining area. Mr. Burr had over 10 years' experience in health care facilities. His experience included serving as a consultant for a corporation with numerous health care facilities, including long-term care facilities, and a total of more than 20 years in the food service industry. As a result of his experience in health care facilities, Mr. Burr had extensive knowledge regarding the dietary needs of the elderly. Petitioner's post-hearing proposal asks why Mr. Burr's resume ends in December 2001, but Mr. Burr's testimony that he sold out his family restaurant/bakery business in a northern state for the purpose of semi-retirement in Florida is sufficient explanation of this part of his resume. Petitioner's proposal also states that Mr. Burr had no college degrees, yet Mr. Burr's resume shows: "University of Florida 1976, Major: Food Service Management, Dietetic Assistant Program," and "Purdue University, 1978, Major: Achieving Food Service Excellence," and Mr. Buchert determined during Mr. Burr's interview that Mr. Burr was a Certified Dietary Manager. Petitioner's resume makes no reference to any college degrees or credits. It does not list any certifications. Petitioner's resume reveals that she had excellent experience in restaurant management and food service management, including food service management in a college environment, but it shows no experience in a long-term care facility for frail or elderly persons. Petitioner had only 13 years' experience in all types of food service. Mr. Buchert's hiring decision was made primarily upon Mr. Burr's 20 years in the food service industry; his 10 or more years of food service in health care facilities, such as assisted living facilities, extended care facilities, and nursing homes; his consultant services to similar facilities; and the creative aspects of his former ownership and management of a family-owned café/restaurant and bake shop. Mr. Buchert wanted to expand Respondent's food service function, and he thought Mr. Burr was better qualified for this creative task than Petitioner or the other applicant. The three interviewers testified credibly that neither Petitioner's national origin, color, and/or race was of any concern to them. Interviewers Johnson and Hayes testified credibly that those elements did not enter into their recommendations to Mr. Buchert, and Mr. Buchert testified credibly that none of those elements had anything to do with his ultimate decision not to hire Petitioner. Mr. Buchert further articulated reasons for selecting Mr. Burr which are both legitimate and non-discriminatory. Respondent never provided Petitioner with Exhibits P-1 and P-2, glossy promotional materials designed to encourage senior citizens to buy into/move into Respondent's facility. Exhibit P-1, is a large brochure with a separate pricing guide. Exhibit P-2 is a virtually identical smaller pamphlet. Petitioner testified that if she had seen P-1, she would never have come to Florida for an interview with Respondent because that brochure did not show enough "people of color." Petitioner's testimony characterized Exhibit P-1 as showing only three "people of color" out of all the people pictured on its front cover, and showing no "people of color" inside. She further characterized the front cover picture of Exhibit P-1 as showing three persons with "dark or black" skin and "one from Japan or Korea." On what basis she made these assumptions, she did not say. In his testimony, Mr. Humbles guessed that there were "two to three Blacks, one Hispanic, and at least one or two Indians" on the front cover of Exhibit P-1. He, also, did not say how he reached these assumptions. Neither of these witnesses demonstrated any expertise in discerning national origin from facial features or any expertise in racial identification. Other witnesses were not asked to guess at color, race, or national origin as pictured on or in the brochure or the pamphlet. In an independent review, the undersigned counted six persons of darker skin hue than the most predominant light skin hue of a total of 26 people on the front and back covers, combined. At most, there is only one adult with a darker skin hue pictured on the inside pages, but there is nothing on or in either exhibit that would signal whether the people photographed inside or outside the covers perceive themselves as "people of color," nor is there anything in the exhibits that designates "country of origin" for anyone pictured. There also is nothing that distinguishes employees from residents on any cover. Inside, age alone might be an indicator of resident status. No expert statistician was presented to show whether or not the number of people pictured constituted a reasonable sample of a resident population of 750 and/or an employee population of 450. It is unrefuted that the brochure (P-1), and presumably the pamphlet (P-2), was designed by a management firm upon instructions from Mr. Humbles to "represent the community in which we live." Both P-1 and P-2 were designed to attract residents, not employees, to the Village. There is every possibility all the people pictured are professional models.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 18th day of July, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 18th day of July 2003. COPIES FURNISHED: D. Paul Sondel Qualified Representative 2135 Victory Garden Lane Tallahassee, Florida 32311 Patrick D. Coleman, Esquire Amy H. Reisinger, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 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 Nimali Sondel 439 Granite Road, No. 5 Kerhonkson, New York 12446
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a public food service establishment, Cups & Cones Yogurt, located in Lake Worth, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 60-12633-R) authorizing it to operate Cups & Cones Yogurt. On July 31, 2001, Addie Alice Manulis, an inspector with Petitioner, conducted an inspection of the premises of Cups & Cones Yogurt. Her inspection revealed, among other things, that: the establishment did not have a food service manager certified by Petitioner1 (which is a critical violation because of the important public health-related function that certified food managers play in supervising and training employees in food protection and handling); there was no documentation on the premises establishing that employees had received required food service training (which is a critical violation because such training helps to prevent the spread of food-borne illnesses); the exit sign at the rear emergency exit was not illuminated; and the establishment had 12 seats, notwithstanding that its licensed capacity was ten and it had only one restroom. During her July 31, 2001, inspection, Ms. Manulis issued and served on Respondent a written warning in which she advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by September 4, 2001, administrative penalties would be imposed against Respondent. Ms. Manulis had previously visited Cups & Cones Yogurt in early April of 2001, to inspect the establishment. Following that visit, she provided Respondent with a written "comments sheet," on which she wrote, among other things, the following: Proof of food employee training not available. . . . Note- Food manager card for Mohammed Chowdhurry expires 5/13/01.2 All managers must be certified- phone #s given. . . . Ms. Manulis returned to the premises of Cups & Cones Yogurt on September 4, 2001, and found that the violations described above had not been corrected. Respondent had replaced a light bulb in the rear emergency exit sign following the July 31, 2001, inspection, but, nonetheless, the sign was not illuminated when Ms. Manulis returned to the establishment on September 4, 2001. In addition, one of Respondent's employees, Mahmudul Haque, had attempted to become a certified food service manager, but he had been unable to pass the certification test prior to September 4, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of $2,500.00, which may be paid in one lump sum or in monthly installments of no less than $250, and suspending Respondent's license for a period of up to 12 months if it fails to pay the fine as required. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. 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 February, 2002.
Findings Of Fact The Petitioner is a not-for-profit Florida corporation, licensed by the Florida Department of Insurance to do business as a Health Maintenance Organization (HMO). It enrolls members and provides them with direct medical care. Petitioner was acquired by the Halifax Hospital Taxing District, a special taxing district and political sub-division of the State of Florida, in 1994. Respondent is the state agency authorized to implement the collection and enforcement of Florida tax laws. Petitioner is a staff model HMO which enrolls people who become members and provides direct medical aid to these members. This medical aid is provided by physicians employed by Petitioner, as well as some outside physicians who have contracted with Petitioner. Membership consists of these major groups: Medicare subscribers, school children enrolled in the Florida Healthy Kids Programs and private employers. Petitioner enrolls two classes of members that would fall into the category of "persons unable to pay", i. e. Medicare beneficiaries and Healthy Kids participants. Petitioner has two Medicare Programs for Medicare beneficiaries. One in which the member pays nothing and receives medical aid and a reduced prescription benefit, and another in which the member pays $15.50 per month and receives medical aid and additional benefits such as a prescription benefit, hearing aid benefit, and optometry benefit with small co-pays. Petitioner provides this comprehensive medical aid under a contract with the Health Care Financing Administration at a HCFA-approved capitation rate. Prescription benefits provided to Petitioner's Medicare members cost Petitioner $36.18 per member, per month, approximately fifty percent of average wholesale price. Non-members of Petitioner seeking their Medicare benefits through traditional Medicare, would pay an average of $70.00 per month for their prescription benefit. Approximately eight percent of the Medicare population in Petitioner's service area fall below Federal Poverty Guidelines. The economic make-up of Petitioner's Medicare membership is inferred to be reflected in its Medicare membership. Petitioner infers that eight percent of its membership falls below Federal Poverty Guidelines and are persons unable to pay. Petitioner's total expenses for the nine-month period ending March 31, 1995, were $64,675,533.32. The Medicare costs for that period were $37,421,480.36. Eight percent or $2,993,718.40, were spent for persons who were unable to pay. Petitioner provides comprehensive medical aid to children in its Healthy Kids Program. The Healthy Kids Program is a state-subsidized program in which children, who were not eligible for medicaid but whose parents do not have health insurance for them, could obtain health coverage. Petitioner was the HMO selected by the Healthy Kids Corporation, the corporation created by the Florida Legislature to operate the Healthy Kids Program, to provide this comprehensive medical aid under a monthly capitation. Petitioner operates its Healthy Kids Program at a loss ratio of approximately 101 percent, i. e. over one hundred cents of every dollar collected goes to direct medical aid to Healthy Kids participants. HMO's traditionally operate with a loss ratio of eighty percent, i. e. eighty cents of every dollar collected goes to the provision of medical care and the other twenty percent would go into administrative expenses. Eighty two point two (82.2) percent of participants in Petitioner's service area fall below Federal Proverty Guidelines and are persons unable to pay. The Healthy Kids' costs for the period ending March 31, 1995 were $3,890,964.65; 82.2 percent, or $3,198,372.90, was spent for persons who were unable to pay. For the nine-month period ending March 31, 1995, a total of $6,192,091.30, or 9.6 percent, was spent on persons who were unable to pay. Any surplus generated from the activities of Petitioner, other than through its participation in the Healthy Kids Program, is turned over to the Halifax Hospital Taxing District. Any surplus generated from participation in the Healthy Kids Program contract is returned to the Healthy Kids Corporation. Petitioner spends in excess of fifty percent of its expenditures on medical aid for the relief of disease, injury, or disability. Medicare is a federally sponsored program available to people sixty- five and over who do not receive medical benefits through an employer. It is available without regard to the person's income level. Medicare is also available to persons under sixty-five who are totally disabled for two months or longer. Medicare subscribers accounted for 12,917 of Petitioner's total of 45,759 subscribers during the relevant nine month period. Petitioner is reimbursed by the federal government at the fixed capitation rate of $365 per month for each Medicare subscriber enrolled as a member of the HMO. Thus, for a nine month period corresponding to Petitioner's financial data, the Petitioner received $42,432,345 from the federal government attributable to Medicare subscribers. Medicare expenses for a nine month period were $37,421,000. Petitioner's federal Medicare revenue exceeded its total Medicare cost by $5,011,345 for the relevant nine month period. This figure is understated because it does not reflect revenue received from the $15.50 supplemental premium for additional benefits. There are two competitors for Medicare subscribers in the Petitioner's market area. Each provider receives the same capitation rate from the federal government. The competitors offer Medicare recipients different programs in which they may enroll. The competitors offer a slightly different product at a higher premium. No testimony was introduced to compare the premium charged and the plans offered by other providers with that offered by other providers with that offered by Petitioner. Prescription medicine is not being provided free of charge or at a substantially reduced cost to those unable to pay. It is not Petitioner's policy to waive the supplemental premium based upon the subscriber's income level, although some Medicare subscribers who get behind on the co-payment are not terminated for that reason. Petitioner's prescription benefit plan is part of a marketing strategy intended to attract Medicare subscribers. Petitioner subsidizes the prescription benefit to attract subscribers. Without the necessary subscriber base, Petitioner would be forced to lay off a portion of its physician employee workforce. Another portion of the Petitioner's subscriber base consists of school age children enrolled in the Healthy Kids Program (the Program). During the nine month period reflected in Petitioner's financial data, 7,130 children were enrolled in the Program. Enrollment in the program is open to all Volusia County school children who do not have health insurance and are not eligible for federal Medicaid health coverage. Approximately 80 percent of those enrolled fell below 135 percent of the federal poverty guideline. The Florida Healthy Kids Corporation is empowered to enter into contracts with health care providers to provide health care benefits to participants. The idea is to provide children who would not otherwise receive coverage with regular health care. Petitioner entered into a competitive bidding process to act as the Volusia area provider for the Healthy Kids Program. Participation in the Program requires the Petitioner to provide health care services to those children who qualify for admission into the program. The Petitioner receives a monthly premium payment per child based upon enrollment. This rate is set by the competitive bidding process. For the period of time reflected in the Petitioner's nine month financial data, the rate was $46.50 per month. This rate generated a surplus. The rate is presently $43 per month. The Program is funded by a combination of state and local tax dollars and premium contributions from parents. Parental contributions are based on a sliding scale which adjusts for income. Parents with incomes below federal poverty guidelines do not have to contribute towards the premium payment; any difference is made up by state and local tax dollars. That a percentage of children live at or below a federal poverty guideline has no demonstrated affect on the cost of Petitioner's services to those children. Petitioner does not establish the economic guidelines used to fix a parent's share of the premium. Petitioner does not receive more or less revenue based upon the income status of a parent or child. Petitioner is not aware of the particular economic status of individual children enrolled in the Program. Petitioner does not provide children in the Program with medical services for free or at a substantially reduced cost to those unable to pay. The Healthy Kids Corporation, in cooperation with state and local governments, provides the subsidy for enrollment of children in families with an income at or below the federal poverty guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order denying a consumer's certificate of exemption to Petitioner. DONE and ORDERED this 26th day of November, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1996. COPIES FURNISHED: Pamela J. Thomas, Esquire Florida Health Care Plans 1340 Ridgewood Avenue Holly Hill, Florida 32117 Kevin J. O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found: At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments." Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection: 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar) 2. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A handwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed) 3. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A hadwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04 4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added] Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to April 2, 2004. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training: Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and Imposing an administrative penalty in the amount of $250.00 per violation for a total penalty amount of $1,000.00, due and payable to: Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Andrea Posani 23 North Lemon Avenue Sarasota, Florida 34236 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
