Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7A-3.15(1), Florida Administrative Code, and that its special license be suspended for three days. DONE and RECOMMENDED this 12th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1983. COPIES FURNISHED: James M. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Grapevine Restaurant No. One, Inc. d/b/a Grapevine Restaurant 4320 14th Street West Bradenton, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 509.032(2)(b), Florida Statutes, and Rule 61C-1.002(8)(b), Florida Administrative Code. The alleged violations are set forth in a Notice to Show Cause dated March 26, 1998.
Findings Of Fact At all times material, the Respondent, Don's Italian Restaurant of Singer Island, Inc. (Don's Italian), doing business as "Italian Connection," operated a public food service establishment located at 3025 South Federal Highway, Delray Beach, Florida. At all times material, this establishment operated under license control number 60-11547-R issued by the Division of Hotels and Restaurants. At all times material to this case, Joel Wallach was the president of Don's Italian, and Mr. Wallach was also actively involved in the operation of the business. The restaurant operated by Don's Italian is a small restaurant. It has a very limited kitchen area. The approximate width of the kitchen working area is five feet. On March 24, 1998, at approximately 11:00 a.m., Al Pistorio, an inspector employed by the Division of Hotels and Restaurants, went to the restaurant operated by Don's Italian to perform a routine inspection as required by the applicable statutory and rule provisions. Mr. Wallach was present when Mr. Pistorio arrived. Mr. Pistorio introduced himself to Mr. Wallach and stated his reason for coming to the restaurant. Mr. Wallach replied with words to the effect that it was a bad day or a bad time for an inspection. Mr. Pistorio nevertheless started walking toward the kitchen to begin his inspection. Mr. Wallach interrupted Mr. Pistorio and repeated that it was a bad time for an inspection. Mr. Wallach made it clear that he wanted Mr. Pistorio to leave without performing an inspection and to come back at some other time to perform the inspection. Following some further discussion, during which Mr. Wallach continued to object to the inspection being performed at that time, Mr. Pistorio said he would have to call his office for further instructions. Mr. Pistorio called from the restaurant and one of the supervisory personnel at the local office of the Division of Hotels and Restaurants told Mr. Pistorio he should leave the restaurant and attend to other matters pending further instructions. Thereupon, Mr. Pistorio left the restaurant. About an hour or so later, Mr. Pistorio was contacted by his office and told to return to the restaurant operated by Don's Italian, where he would be met by one of his supervisors. Mr. Pistorio returned to the restaurant, where he was met in the parking lot by his immediate supervisor, Gene Peters. Messrs. Pistorio and Peters entered the restaurant and asked Mr. Wallach if they could conduct an inspection. Mr. Wallach agreed, and the two inspectors immediately commenced the inspection. Within just a couple of minutes, Mr. Wallach approached the two inspectors as they were discussing conditions in the restaurant that appeared to be minor violations. Mr. Wallach appeared to be agitated and placed a hand on Mr. Peters' shoulder to get his attention. Mr. Peters told him to remove his hand. Mr. Wallach became angry and confrontational and ordered Mr. Peters to leave the restaurant. During the course of this confrontation, Mr. Peters told Mr. Wallach that he would be subject to fines if he prevented the inspectors from completing their inspection. Mr. Wallach continued to demand that Mr. Peters leave the restaurant, but did agree that Mr. Pistorio could remain and finish the inspection. Thereupon, Mr. Peters went out into the restaurant parking lot and Mr. Pistorio resumed his efforts to inspect the restaurant. A minute or two later, Mr. Wallach noticed that Mr. Pistorio was writing up a violation based on the morning incident. Mr. Wallach again became upset and angry and began to speak to Mr. Pistorio in a confrontational and abusive manner. Mr. Wallach's abusive comments to Mr. Pistorio included the threat that if Mr. Pistorio was going to write him up for violations, ". . . I'll throw your ass out, too." Under these hostile circumstances, it was not possible for Mr. Pistorio to continue his inspection without fear of further unpleasantries, so he promptly left the restaurant and joined Mr. Peters in the parking lot. Both inspectors left the restaurant premises without being able to complete an inspection of the restaurant. It is the policy and practice of the Division of Hotels and Restaurants to inspect restaurants during hours of operation, usually between the hours of 9:00 a.m. and 5:00 p.m. It is also a policy and practice to conduct the inspections without prior notice to the restaurant. Unannounced inspections are more likely to reveal the normal condition in which the restaurant facilities are maintained. Restaurant inspections are often made during peak meal times in order to observe whether proper sanitary practices are maintained during periods of peak activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent has violated Rule 61C-1.002(8), Florida Administrative Code, and imposing a penalty consisting of an administrative fine in the amount of $1,000. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999.
The Issue The issue in this case is whether Respondent, Dome Grill, Inc. (the Grill), discriminated against Petitioner, Jennifer Morehead, on the basis of her age.
Findings Of Fact Ms. Morehead is now a 51-year-old female, who, at the time of this incident had three years of experience as a cashier. On January 9, 2012, Ms. Morehead spoke with Michael Karamalakos (Mr. Karamalakos), the owner of the Grill, about any openings at the Grill. Mr. Karamalakos invited Ms. Morehead to come to the Grill the following day to discuss an open cashier position. The Grill is located at 561 Central Avenue, St. Petersburg, Pinellas County, Florida. On January 10, 2012, Ms. Morehead arrived at the Grill for her interview. She encountered Kostas Karamalakos (K.K.), a son of the owner. When K.K. heard that Ms. Morehead was there to interview for the cashier position, K.K. stated something to the effect: "We wouldn't be interested in you. We are looking for someone young and beautiful." K.K. admitted to making a statement to this effect, although he could not remember his exact words. Ms. Morehead was stunned by K.K.'s remarks. K.K. did not offer to get his father for the interview, nor did Ms. Morehead complete an interview for the cashier position. After K.K. repeated his statement to Ms. Morehead a second time, she left the Grill. Once Ms. Morehead left the Grill, she confided in a friend Jennifer Zoellner about K.K.'s statement. Not believing that anyone would verbalize that kind of discriminatory sentiment, Ms. Morehead and Ms. Zoellner returned to the Grill. Upon entering the Grill, Ms. Zoellner asked K.K. to repeat what he had said to Ms. Morehead. K.K. did so, informing Ms. Zoellner that the Grill was looking for a young and beautiful college-aged cashier. After a heated exchange between Ms. Zoellner and K.K., the two women left the Grill. Alex Karamalakos (A.K.), another son of the owner was also present when Ms. Morehead and Ms. Zoellner returned to the Grill. A.K. was standing in close proximity to K.K. when the two women entered the Grill. A.K.'s testimony that he did not hear K.K.'s discriminatory statement when K.K. repeated it to the two women is not credible. A.K. became visibly upset with K.K. when K.K. uttered his discriminatory statement to the women. A.K. neither apologized for his brother's statement nor stated that it was not the position or policy of the Grill. K.K. admitted to making the discriminatory statement to Ms. Morehead. K.K. is the youngest son of Mr. Karamalakos and is recognized by patrons as belonging to the owner's family. K.K. lives above the Grill (with other members of his family), spends time at the Grill, and attends college. K.K. prepares and eats his breakfast and lunch at the Grill. K.K. may not be on the payroll of the Grill, but he continues to perform minor tasks at the Grill. K.K. admitted that he has, in the past, held himself out as a manager of the Grill. The Grill has hired people who are over 40 years of age. Mr. Karamalakos maintained that he is the only person who has the authority to hire and/or terminate Grill employees. However, when he is away from the Grill, A.K. is in charge, and A.K. is considered the general manager of the Grill. A.K. and K.K. do not get along. Although there was testimony that other younger cashiers have been hired by the Grill, no testimony was received as to who was hired as the cashier at the time Ms. Morehead made her inquiry at the Grill. It is unknown whether a younger person was hired for the position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim for relief filed by Petitioner, Jennifer Morehead, should be denied. DONE AND ENTERED this 8th day of August, 2013, in Tallahassee, Leon County, Florida. S Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2013.
The Issue The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in and around Santa Rosa County, Florida. Respondent employed approximately 190 people. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was involved in an interracial personal relationship with a white man. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2017.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex, religion, and national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that at all times material hereto, Omni was an employer as defined by the Florida Civil Rights Act of 1992, as amended. No dispute exists that Mr. Priskie is a white, Jewish male. Mr. Priskie began his employment with the Colonnade Hotel in 1992 as a Catering Manager. The Colonnade Hotel was then managed by The Continental Companies. As a Catering Manager, Mr. Priskie was in a sales position. He was the Manager of the Year in 1993 and 1994. At the time of hearing, Mr. Priskie had 20 years of experience in the hotel business. In January 1994, the management of the Colonnade Hotel was assumed by Omni Hotels. The Colonnade Hotel then became known as the Omni Colonnade Hotel. When Omni Hotels2 assumed management, the Colonnade Hotel was under-performing in all areas as a hotel. On or about January 25, 1994, Mr. Priskie was hired by Omni and immediately promoted to the Director of Catering. Based upon Mr. Priskie's performance before Omni took over, Omni was convinced that Mr. Priskie could perform in the position. As Catering Director, he was the direct supervisor of the Catering Sales Managers and other employees in the Catering Department. Mr. Priskie had never been a Catering Director under Omni's management. At the time of Mr. Priskie's interview for the position of director of catering, at least two of the persons interviewing him knew that he was Jewish. Mr. Priskie replaced a non-Jewish male. In mid-April 1994, Keith Douglas was transferred to the Omni Colonnade as the Director of Sales and Marketing. Mr. Douglas, in that position, became Mr. Priskie's supervisor. Mr. Douglas and Mr. Priskie had not worked together in any capacity prior to Mr. Douglas' transfer. The primary goal of Mr. Douglas was to aid in the transition of the Omni Colonnade's catering and sales operations to Omni's standards. One of his core focuses in accomplishing this goal was for the Catering Department to develop and maintain its files according to Omni's Accounting Coverage Program (ACP) system's standards. In 1994, the ACP system was a manual filing system, which required categorizing and qualifying accounts. The ACP system was used by Omni to evaluate the revenue potential of the Catering Department's account base. A Lotus spreadsheet, called the "ACP" for short, was created to reflect each of the files for the individual Catering Department's accounts, and included some of the contents of the files. Further, each file of an account of the Catering Department was required to be categorized a certain way and contain certain information qualifying the account, i.e., qualifying information. The ACP system was particularly significant to Omni. The ACP system revealed the revenue potential of the Catering Department's account base, and Mr. Douglas needed to know the value of those accounts in light of the recent transition of the hotel to Omni. One of the first issues addressed by Mr. Douglas with the Catering Department was the ACP system. He held a meeting in April 1994 with the Catering Department regarding the ACP system and, afterwards, provided the Catering Department with a memorandum explaining the ACP system. The memo explained how the ACP system should be executed. At no time prior to his termination did Mr. Priskie indicate that he needed assistance in complying with the ACP system. To assist employees under his supervision, Mr. Priskie issued at least two memoranda explaining the ACP procedures and offering assistance to any employee who had questions. An inference is drawn that Mr. Priskie understood the ACP system. On May 1, 1994, Omni's Management Performance Appraisal (MPA) was completed on Mr. Priskie. Mr. Douglas had requested Mr. Priskie to perform a self-evaluation using the MPA, and then he and Mr. Priskie reviewed the MPA. Mr. Douglas agreed with Mr. Priskie that Mr. Priskie's performance as the Director of Catering was acceptable, without noting any serious problems. A section of the MPA, entitled "Summary of Evaluation," considered the individual, being evaluated, on the whole and inquired in one area whether the individual's performance far exceeded, exceeded, met, needs some improvement, or did not meet job requirements. No notation was made by either Mr. Priskie or Mr. Douglas. Within about a month after Mr. Douglas' arrival, he began to have concerns regarding Mr. Priskie's ability to lead the Catering Department under Omni's management. Mr. Douglas had several discussions with Mr. Priskie regarding expectations that he had as to Mr. Priskie's performance. By memorandum to Mr. Priskie, dated July 6, 1994, Mr. Douglas summarized the several discussions that he had with Mr. Priskie and as to what he perceived to be Mr. Priskie's substandard performance. The memorandum was signed by Mr. Douglas and Mr. Priskie, and, as a witness, by Ms. Alina Molina, who was the Director of Human Resources. Mr. Douglas stated in the memorandum that Mr. Priskie needed to complete three priorities by June 27, 1994: *Finalize Catering ACP *Qualification and color coding of Catering Files *Achieve ACP and Prospecting call quotas for the department Further, Mr. Douglas indicated in the memorandum that Mr. Priskie failed to complete the first two priorities by the designated time and that Mr. Priskie blamed another employee for the incompletion, when the incompletion was caused by Mr. Priskie's own failure to perform priority number two with his own files. Moreover, Mr. Douglas indicated that, on June 28, 1994, he had given Mr. Priskie an extended deadline of July 1, 1994, to complete verification of the qualification of his own files but that Mr. Priskie failed to do so. Mr. Douglas considered Mr. Priskie's attempt to blame another employee a misrepresentation by Mr. Priskie. Furthermore, Mr. Douglas considered the misrepresentation by Mr. Priskie to be a "huge infraction." Additionally, Mr. Douglas stated in the memorandum that, on June 28, 1994, he informed Mr. Priskie that Mr. Priskie's performance was "disappointing" and that change was expected "immediately" in the following areas: *Execution of the Catering ACP and Catering file system *Personal qualification of your files *Achieve targeted ACP and Prospecting call quotas weekly for the department and personally *Achieve established revenue goals for the department *Set an example for the department *Develop Monthly Strategic Action Plan to achieve Catering Revenue Goals Finally, Mr. Douglas stated in the memorandum that all of the areas indicated above were of "major concern" and that he and Mr. Priskie agreed that "30 days is a reasonable time frame to recognize a marked improvement and your progress will be evaluated at that time." Mr. Priskie was aware that he was in a "job threatening situation," i.e., that his job was in jeopardy. The undersigned finds credible the testimony that, in the hotel industry, an employee in Mr. Priskie's level of hierarchy, who is informed that their job is in jeopardy, knows that termination, not suspension, probation, or some other form of action, is the next step if the required change is not made. Mr. Priskie began several techniques to address Mr. Douglas' concerns and noted the techniques in a memorandum to Mr. Douglas, dated July 11, 1994, with a copy to Ms. Molina and to Mark Amidon, Omni's Director for Food and Beverage. Some of Mr. Priskie's responsibilities as Director of Catering affected the food and beverage department over which Mr. Amidon was responsible. Mr. Priskie indicated, among other things, that the filing system was being put back in place after the files had been incorrectly and improperly filed by a person under his supervision; that the ACP worksheet update would begin after completion of the filing system; that remaining files would be updated; that weekly meetings with and monitoring of sales persons would occur regarding revenues, and everyone would work as a group; that individual counseling would occur with staff who failed to meet their revenue goals; and that he had begun to set a positive example for the sales persons by communicating more with them daily. Shortly thereafter, on July 18, 1994, Mr. Douglas met with Mr. Priskie. Mr. Douglas discussed Mr. Priskie's inability to administratively lead the Catering Department, including leading by example; Mr. Priskie's managing by memoranda, as the only form of communication with the employees under his supervision; and Mr. Priskie's inability to handle relations between catering sales managers and difficult customers by referring difficult customers back to the appropriate sales manager and making sure proper follow-up occurs with both the sales manager and the customer. Mr. Douglas made clear to Mr. Priskie that he was questioning Mr. Priskie's ability to be the Director of Catering and that Mr. Priskie's job was in jeopardy. Mr. Douglas issued a memorandum to Ms. Molina, with a copy to Mr. Priskie, memorializing the meeting and discussion. By memorandum dated July 21, 1994, Mr. Amidon complained to Mr. Douglas about the Catering Department, a complaint which was indirectly about Mr. Priskie. Mr. Amidon complained that the "flow of informations [sic]" from the Catering Department to the Banquet Department was worse and was causing "numerous problems for the Banquet department and alternately our guests." As Director of Catering, Mr. Priskie was held responsible for the problems regarding the communication between the departments. Mr. Priskie failed to meet Mr. Douglas' expectations as Director of Catering. On August 5, 1994, Mr. Priskie was terminated from his position of Director of Catering and from his employment with Omni. On the date of Mr. Priskie's termination, Mr. Douglas issued a memorandum addressing whether Mr. Priskie had met the goals outlined in the memorandum of July 6, 1994. Mr. Douglas reviewed a portion of Mr. Priskie's and the Catering Department's files and determined that neither Mr. Priskie's files nor the Catering Department's files, as a whole, met Omni's ACP standards. Even though Mr. Priskie had established a Lotus spreadsheet outlining his files and the files of each catering manager, Mr. Douglas determined that the information in the files themselves did not mirror the information on the spreadsheets. Further, Mr. Douglas determined that the Catering Department, as a whole, failed to meet its sales goals although Mr. Priskie consistently met his own booking and sales revenue goals. As the Director of Catering, Mr. Priskie was held responsible for the performance of the sales persons in the Catering Department and for assuring that the Catering Department achieved its goals as a whole. Mr. Priskie does not dispute that the Catering Department, as a whole, failed to meet its revenue (sales) goals. At the same time, Mr. Priskie states that he should not be held responsible because Mr. Douglas prevented him from managing his (Mr. Priskie's) subordinates. The record contains insufficient evidence to support Mr. Priskie's position. During his employment with Omni as the Director of Catering, Mr. Priskie supervised a Hispanic3 female, Amisel "Amy" Nunez. Ms. Nunez was first a Catering Sales Manager and, subsequently, a Senior Catering Sales Manager. Ms. Nunez's primary responsibility was to generate revenue and bookings from the catering markets assigned to her. Ms. Nunez's responsibilities were no comparison to Mr. Priskie's, who was responsible for the performance of the Catering Department in revenue goals, as a whole, as well as his own revenue goals. According to her Pace Reports, Ms. Nunez exceeded her year-to-date sales goals through May 1994, but failed to meet her goals for the months of June and July 1994. She was not terminated for failing to meet her sales goals for June and July 1994. Mr. Priskie asserts that he was prevented by Mr. Douglas from supervising Ms. Nunez. Mr. Priskie complained to Mr. Douglas regarding Ms. Nunez not meeting her sales goals. According to Mr. Priskie, Mr. Douglas advised him not to be concerned about Ms. Nunez's performance regarding the sales goals. Mr. Priskie's testimony is found to be credible. Regardless, the evidence is insufficient to show that the failure of Ms. Nunez's reaching her sales goals for June and July 1994, played a role in the termination of Mr. Priskie for poor performance. At or around the time of Mr. Priskie's termination from Omni, Ms. Nunez's position was Senior Catering Sales Manager. By letter dated July 19, 1994, Ms. Nunez notified Mr. Douglas that she was resigning, effective August 25, 1994. Omni requested that she reconsider her decision to resign, and by memorandum, dated July 27, 1994, Ms. Nunez advised Omni that she would continue in the position of Senior Catering Sales Manager for 30 days and would consider completely rescinding her resignation under certain conditions, which were enumerated. After Mr. Priskie's termination, even though Ms. Nunez did not have the title of Director of Catering, she assumed Mr. Priskie's responsibilities. Omni had begun to pursue its Hispanic market, a more lucrative market for Omni at that time. An inference is drawn that Omni's pursuit of the Hispanic market was a business decision. On August 22, 1994, Omni's Management Performance Appraisal (MPA) was completed on Ms. Nunez, as Senior Catering Sales Manager, by Mr. Douglas. The Summary of Evaluation section indicated, among other things, that Ms. Nunez exceeded the job requirements. The MPA reflected also a recommendation from Mr. Douglas to increase her salary from $25,000.00 to $28,000.00, with a .5 percent increase in gratuity. Ms. Nunez resigned her position, as Senior Catering Sales Manager, effective October 1994. Mr. Priskie claims that Omni terminated him so that it could replace him with a Hispanic female, namely, Ms. Nunez, and attract the Hispanic market. Obviously, Ms. Nunez is of a different sex than Mr. Priskie. Mr. Priskie has taken differing positions on whether he was terminated because of his sex: he does and he does not believe that he was terminated because of his sex. The evidence is insufficient to demonstrate that Mr. Priskie believes that he was terminated because of his sex. During his employment as Director of Catering, Mr. Priskie was requested by his superiors to test the market and develop Kosher catering at Omni, wherein Omni would handle the Kosher catering in-house instead of hiring an outside business to provide the Kosher catering. Among other things, in-house Kosher catering required supervision by a Rabbi; a kitchen devoted exclusively to Kosher cooking; the use of Kosher products, cooked in Kosher pots and pans, and served on Kosher plates; and the use of Kosher utensils. At the time, no other hotel in the area had a Kosher program. Mr. Priskie had numerous meetings with the Jewish community and suppliers of Kosher products and expended an enormous number of hours in developing a plan for Kosher catering. Mr. Douglas claims that he was not aware that Mr. Priskie had expended so much time on the Kosher catering; however, such testimony by Mr. Douglas is not found to be credible. Mr. Douglas was aware of Mr. Priskie's involvement in developing in-house Kosher catering at Omni. But, what is found to be credible is the testimony that Omni determined that Kosher catering would not be pursued because Kosher catering was too expensive and because Omni's physical limitations were not suitable for Kosher catering. For Omni to provide Kosher catering, many changes and revisions would have to be made, including creation of an additional kitchen for which no additional space existed; and additional space for the storing of Kosher cutlery, dishes, pots, and pans for which no additional space existed. Sales revenue was lower than Omni wanted, and Omni did not want to venture into a costly undertaking. The evidence is insufficient to demonstrate that Omni disparately treated Mr. Priskie because it did not pursue or by not pursing the Kosher catering program. Apparently, after the decision was made to not pursue Kosher catering, Mr. Priskie was not notified of the decision. Mr. Priskie continued with his planning. He was finally informed that Omni would not pursue Kosher catering. After Mr. Priskie's termination, in-house Kosher catering became a dead issue. In October 1994, after Mr. Priskie's termination, Omni hired a female, Melanie Zeller, as a Catering Sales Manager. In February 1995, she was promoted to the position of Director of Catering. Mr. Douglas believed that Ms. Zeller possessed the capabilities to perform and grow in the position. On May 26, 1995, Ms. Zeller was appraised in her position as Catering Director, using the MPA. In the Summary of Evaluation section, she was rated as having met the job requirements. By memorandum dated November 14, 1995, Ms. Zeller was notified by Mr. Douglas of performance concerns. He indicated, among other things, that the memorandum constituted a warning and that further disciplinary action, including termination, may follow if certain areas did not improve. On January 2, 1996, Ms. Zeller was appraised again using the MPA. In the Summary of Evaluation section she was rated as not meeting the job requirements. On March 26, 1996, Ms. Zeller was terminated for poor performance. Prior to her termination, Ms. Zeller was warned of the areas in which she must improve, as was Mr. Priskie. The areas for improvement were customer response time; billing and collections for the catering department; development of realistic, but aggressive, budgets for the catering department; achievement of monthly budget expectations; and enhancement of her position within Omni. Ms. Zeller was unable to meet the performance expectations of Omni and was terminated. Mr. Priskie also asserts that Ms. Zeller was provided a longer period of time to improve and, therefore, Omni discriminated against him. Omni's economic circumstances at the time that it assumed management of the hotel needs to be considered. The hotel was under-performing in all areas, which equated to low revenues; Omni wanted revenues to increase and increase in a short period of time. When Ms. Zeller became Director of Catering, the revenues were better than in the beginning of Omni's management, but Omni still had standards to maintain. The evidence is insufficient to show that such action by Omni was inappropriate, especially given the circumstances. No evidence as to Ms. Zeller's religion was presented. The evidence was insufficient to establish her national origin. Obviously, Ms. Zeller is of a different sex than Mr. Priskie. Another employee under Mr. Douglas' supervision to whom Mr. Priskie claims his treatment should be compared is Diana Anker. Ms. Anker's position was Business Travel Sales Manager. Her position was not equivalent to Mr. Priskie's position. Even though she had sales goals, Ms. Anker's sales goals were in terms of numbers of room nights booked, not in terms of dollar amounts. Further, Mr. Priskie was not terminated on his failure to meet his sales goals. Additionally, another employee with whom Mr. Priskie claims his treatment should be compared was Omni's Chef, Alain Petitbon. Chef Petitbon was Mr. Priskie's equal in terms of hierarchy at Omni, and he had no supervisory authority or any other authority over Mr. Priskie. Allegedly, Chef Petitbon made an anti-Semitic remark about Mr. Priskie at a banquet function, referring to Mr. Priskie as a "Jew boy" or "Jew" or "fucking Jew." Mr. Priskie complained both orally and in writing. Mr. Amidon was Chef Petitbon's supervisor. By memorandum to Chef Petitbon, dated March 22, 1994, Mr. Amidon imposed disciplinary action against Chef Petitbon. The memorandum was signed by George Cozonis, Omni's General Manager; Ms. Molina; Mr. Amidon; and Chef Petitbon. Among other things, Mr. Amidon labeled Chef Petitbon's remarks as a "grave offense" and warned him against any further violations of Omni's policy. The disciplinary memorandum was placed in Chef Petitbon's personnel file. The disciplinary action taken against Chef Petitbon was not taken at or around the time that he made the anti-Semitic remark about Mr. Priskie. The disciplinary action, regarding Mr. Priskie, was taken against Chef Petitbon only after Chef Petitbon had committed improper actions against other employees in February 1994, which were considered in violation of Omni's policy. Prior to the disciplinary action against Chef Petitbon, but shortly after Chef Petitbon made the remark about Mr. Priskie, Mr. Douglas and Mr. Amidon were in attendance at an Executive Committee meeting, as members of the Executive Committee. During the meeting, Mr. Douglas made a joke regarding the anti-Semitic remark by Chef Petitbon, using the phrase "Jew boy" but not directly referring to Mr. Priskie although it was understood that Mr. Douglas' remark was referring to Mr. Priskie. Even though, in 1994, Omni had an "Open Door Policy," which provided an avenue for Mr. Priskie or Mr. Amidon to complain regarding the remark made by Mr. Douglas, neither Mr. Priskie nor Mr. Amidon used the "Open Door Policy." The undersigned finds Mr. Amidon's testimony credible that Mr. Douglas made the remark.4 The evidence demonstrates that Mr. Douglas and Omni's management knew that Mr. Priskie was Jewish before Mr. Priskie's termination. Even having found that Mr. Douglas knew that Mr. Priskie was Jewish before Mr. Priskie's termination, the evidence is insufficient to demonstrate that such knowledge played a role in the termination of Mr. Priskie. Further, Mr. Priskie asserts that, during hiring/promotional phase to the position of Director of Catering, Omni's Regional Vice President, Philip Georgas, made a discriminatory comment and that the comment evidenced discrimination. Mr. Georgas was one of Omni's executives with whom Mr. Priskie interviewed. The comment made by Mr. Georgas was that Mr. Georgas was "Greek," that Mr. Priskie was "Jewish," and that "normally Greeks and Jews don't work well together." However, even after the comment was made, Mr. Georgas did not object to Mr. Priskie being hired/promoted as the Director of Catering and Mr. Georgas was under no obligation to approve Mr. Priskie getting the position. This evidence is insufficient to establish that Mr. Georgas' comment or knowledge that Mr. Priskie was Jewish caused or played a role in Mr. Priskie's termination. During 1994, Omni terminated seven employees for poor performance. Mr. Priskie asserts that such terminations support his position that Omni discriminated against him. Race-wise, of the seven persons terminated, one was Black, two were Hispanic, and four were White. The religious affiliation of each employee was listed by Omni as "unknown" because such information was not required by Omni and was, therefore, not maintained by Omni. However, the evidence clearly shows that one of the seven terminations was Jewish, i.e., Mr. Priskie. Further, the undersigned finds Mr. Priskie's testimony credible that another employee was a Jewish-female, who worked for Omni only six weeks before being terminated. Mr. Priskie did not know the other five employees who were terminated. This evidence that two Jewish-employees were terminated in 1994 by Omni is insufficient, in and of itself, to demonstrate that Omni terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination. Taking the above circumstances together, regarding knowledge of and the actions of those who had knowledge of Mr. Priskie's religion and/or national origin and the termination of seven employees for poor performance, the evidence is still insufficient to demonstrate that Omni terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination. Damages At the time of his termination, Mr. Priskie earned $40,000.00 per year in salary, plus a percentage of the Catering Department revenues.5 According to Mr. Priskie, his commission was $21,000.00 in 1994 and he estimates that his commission for 1995 through 2001 at $42,000.00 per year. The evidence is insufficient to show that Mr. Priskie's commissions can be predicted with reasonable certainty. For the years 1994 through 2001, he estimates his lost wages at $343,643.00 and lost commission at $315,000.00.6 Mr. Priskie computes his lost wages by adding a three percent cost of living increase to his salary for each year after 1994. Further, Mr. Priskie asserts an entitlement to his actual cost of health insurance, totaling $57,330.00, that he obtained after his employment. As a benefit of his employment, Omni provided Mr. Priskie with health insurance at no cost to him. As a result, Mr. Priskie claims lost wages of $715,973.00, with 10 percent simple interest; totaling $787,570.00. In addition to lost wages, Mr. Priskie asserts an entitlement to fees at $450,000.00 and costs of bringing this action at $23,352.85. The fees are calculated by using the estimated time that he and his wife expended on this case over a seven-year period, which was 3000 hours, at $150.00 per hour. The costs include copying, stationary, subpoenas, gasoline, cellular telephone, home telephone, dry cleaning, postage, and home computer. Further, Mr. Priskie claims punitive damages at $1,260,622.85. Consequently, Mr. Priskie's total claim is $8,240,622.85. Regarding mitigation, Mr. Priskie asserts that he tried to find employment after he was terminated, but he could not recall who he contacted, his first job after being terminated, where he worked in 1995, or how long he was unemployed. Approximately one month after being terminated, Mr. Priskie underwent knee surgery and, during his recovery period from the surgery, Mr. Priskie was unable to recall whether he sought employment even though he was able to perform catering duties. For the years 1994 (after his termination) and 1995, no credible evidence was presented as to mitigation. Beginning approximately 1996, Mr. Priskie started his own business, named "Father Goose," which was a mail- order/internet catalogue. Mr. Priskie ran Father Goose exclusively and obtained no other employment until approximately 2000 because he wanted to work at home, so that he could spend time with his family. According to Mr. Priskie, Father Goose operated at a loss. In approximately 2000, Mr. Priskie began working as the Director of Catering at a restaurant, named Shooters. He earns $35,000.00 per year, as a base salary, and a commission of three percent of his gross catering sales. Mr. Priskie's base salary is less than he received at Omni, and his commission is more than he received at Omni. Mr. Priskie's tax returns for the years 1994, 1996, 1997, and 1998 were entered into evidence. During the years 1996, 1997, and 1998, Mr. Priskie characterized his occupation as an "Investor" on his tax returns. According to Schedule D of his tax returns, Mr. Priskie had capital gains from sales and purchases of stock of $194,913.00 for 1996; $31,348.00 for 1997; and $178,532.00 for 1998. Mr. Priskie's tax returns for the years 1995, 1999, and 2000 were neither offered nor entered into evidence.7 Furthermore, no credible evidence regarding his income for those years was presented. Mr. Priskie's efforts at mitigation were not reasonable until 2000 when he began employment at Shooters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Ibex Colonnade Corporation, d/b/a Omni Colonnade Hotel did not discriminate against Jeffrey Priskie on the basis of his sex, religion, and/or national origin. DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2003.
The Issue This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing. The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.
Findings Of Fact At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises: In the kitchen, in the freezer closest the entrance was approximately: 15 slices of bacon 8 slices of turkey 20 slices of pickles 3 onions 3 tomatoes 2 slices of American cheese 10 oz. of tuna fish 25 slices of Pastrimi hot dogs slices of roast beef 1b. of American cheese 1bs. of Swiss cheese 1 six 1b. can of sliced pineapple In the freezer in the middle of the kitchen the following was found: 2 loaves of bread 5 sandwich buns 8 submarine rolls 4 heads of lettuce 2 celery stalks 1 gallon of milk 4 lemons 13 limes 34 In tomatoes the stand-up icebox was found the following food: 3/4 of a cantalope 3 1/2 sticks of margarine 12 rolls 2 1/2 20 oz. bags of mixed vegetables 4 bags of hard rolls 7 hot dogs 2 loaves of Jewish bread 4 slices of salami 3 slices of ham In the food storage chest was found the following food: 7 cans of pickle spears 99 oz. 2 1 1b. bags of potato chips 2 cans of red beans 6 1bs. 15 oz. 4 cans of tuna fish 11 1bs. 2 1/2 oz. This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX. DONE AND ORDERED this 9th day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 John L. Waller, Esquire The Legal Building 447 3rd Avenue, Suite 403 St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
