The Issue By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.
Findings Of Fact P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.
Findings Of Fact The Respondent is responsible for administering Florida laws respecting the sale of alcoholic beverages. Sales of alcoholic beverages are regulated in Florida through a licensing system. "Liquor" licenses authorize licensees to sell alcoholic beverages without regard to alcoholic content. Various categories of liquor licenses are issued by the Respondent. The two categories most pertinent to this proceeding are "quota" licenses and "restaurant" licenses. Quota licenses are available on the basis of one license per 2,500 in population for each county which permits such licenses (Some counties have different quotas established by Special Acts of the Legislature.). The term "quota" is derived from the fact that the issuing formula is based upon the decennial Federal census, and thus only a finite number of licenses are available. Section 561.20(1), Florida Statutes. Restaurant licenses are an exception to the quota scheme and are not limited in number. They are available to "any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." Section 561.20(2)(a)3, Florida Statutes. There are approximately 3,000 outstanding quota licenses, and 2,000 outstanding restaurant licenses. Depending upon the specific terms of the license, quota license holders are authorized to sell liquor for off premises consumption. These are called "package" sales. Prior to the adoption of the amendment to Rule 7A-3.16, restaurant licenses issued after January 1, 1958, did not authorize package sales. Prior to the adoption of the amendment, the rule Provided: No licensee holding a special restaurant license issued after January 1, 1958, may sell alcoholic beverages for off premises consumption other than as may be Provided by special act. The prefix "SRX" shall be made a part of the license numbers of all special restaurant licenses issued after January 1, 1958, distinguishing them in identity from other licenses. The amendment which is the subject of this proceeding deleted the underlined portion of the rule. The effect of the amendment is to permit holders of restaurant licenses to make package sales so long as other criteria pertaining to the licenses are met. The Petitioner is a publicly owned Florida corporation which does business in Florida and five other states. Petitioner is engaged in the business of selling alcoholic beverages for on and off premises consumption. The majority of its business activities are in Florida, and Florida package sales represent more than half of the Petitioner's total business volume nationwide. The Petitioner holds forty-tow quota licenses issued by the Respondent. Quota licenses are transferable; and since they are limited in number, their market value frequently far exceeds the fees imposed by the Respondent. The market value of quota licenses held by the Petitioner in Dade and Broward Counties, Florida, is nearly two million dollars. The Petitioner's business is a very competitive one. When the petitioner is considering whether to invest in a new location, numerous factors are considered. These include demographics, traffic patterns, population, zoning, and the number and location of competitors. The number and location of competitors is the single most important factor. Since package sales constitute a majority of the Petitioner's business volume, the proximity of competitors who offer package sales is paramount. Because under the Respondent's rules restaurant licensees have been prohibited from making package sales, the location of restaurant licensees has not been of concern to the petitioner in determining where to locate. The Petitioner may have made different judgments about numerous of its locations if nearby restaurants were able to make package sales in competition with the Petitioner. No specific evidence was introduced from which it could be determined which if any of the Petitioner's locations would not have been opened, or which will suffer a competitive disadvantage as a result of the amendment to Rule 7A-3.16. Indeed, implementation of the amendment to the rule has been stayed by the courts, and no determination can be made as to which restaurant licensees might avail themselves of the opportunity of making package sales, and to what extent. The market value of the Petitioner's quota licenses and competition for the Petitioner's business outlets are affected by licensing considerations apart from whether restaurant licensees will be permitted to make package sales. As a result of the 1980 Federal census, numerous new quota licenses will be available in Dade and Broward Counties. These additional licenses, when issued, could have a substantial impact upon the value of the Petitioner's licenses, and the competitive advantages of the Petitioner's business locations. The Intervenor is the holder of a restaurant license issued by the Respondent. The amendment to Rule 7A-3.16 would permit the Intervenor to make package sales of alcoholic beverages. The economic impact statement adopted by the Respondent in support of its amendment to Rule 7A-3.16 provides in pertinent part as fellows: This rule will likely stimulate competition in the market place by permitting more outlets for off premises sale of alcoholic beverages. There would be no appreciable impact upon the state's revenue, but should there be any impact it is estimated that more liquor would be sold rather than less. Competition upon existing package stores would be in proportion to the proximity and competitive power of special restaurants permitted to sell by the package. In developing this statement, various officials within the Respondent met on several occasions to discuss the potential economic impact of the amendment to the rule, and representatives of the regulated industry were consulted. Hearings were conducted by the Respondent before the amendment was adopted. Representatives of the industry, including a representative of the Petitioner, appeared at hearings and stated their positions with respect to the amendment. The economic impact statement accurately portrays the potential economic impact of the amendment. It does not appear that the effect of competition upon existing package stores can be estimated with any precision. Indeed, the Petitioner did not present evidence and could not present evidence with respect to the precise impact that the amendment would have upon any of its locations.
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER 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 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
Findings Of Fact Petitioner, who has fifteen years experience in the restaurant business, was hired in October, 1984, by the Respondent, Jady's Inc., as general manager of its Baxter's restaurant in Sarasota. Since the operation was soon to be opened, Petitioner was advised that his duties included training employees, food service, and anything necessary to insure the proper and orderly operation of the restaurant. On April 2, 1985, less than a month after the restaurant was opened, Petitioner had his first accident, falling through the ceiling while checking a water heater in the attic, and striking himself on a step ladder. He injured his shoulder and neck in the fall. He did not lose any work time as a result of this incident though he was treated by a doctor and received medical compensation for the injury through Worker's Compensation. Since he continued working, however, he did not receive any payments for loss of wages. On August 21, 1985, he was again injured while working at the restaurant when he slipped and fell in the kitchen, hitting his head on the floor. He contends that his previous injury was aggravated by this accident and that he also injured his right leg. As a result of the accident, he saw several doctors including an orthopedic specialist. His injury was diagnosed as myositis, and he contends that though his leg has improved, he still has residual injuries which manifest themselves in pain radiating from the hip down the leg, and pain on the right side of his face, and in the jaw and shoulder. As a result of this second injury, he was awarded Worker's Compensation wage and medical payments and contends he still has some medical problems which tend to come and go. Petitioner continued to work after August 21, 1985, except for the initial three days he took off at the advice of his physician, and October 7, 1985, which he took off to help his wife with her liquor license. His actions were limited, however, in that he could not lift any substantial weight without pain and dizziness, but he was able to do the administrative work involved in managing the restaurant as well as serving and light food preparation. Nonetheless, on October 10, 1985, according to Petitioner, Mr. Schoenbaum terminated his employment stating at the time it was because he was injured. Petitioner contends that at the time of discharge, Mr. Schoenbaum threatened him with non- physical destruction of himself and his family through the contacts he had. When Mr. Oberoi asked for a leave of absence to recuperate and then return to work, according to Petitioner, Mr. Schoenbaum declined, stating he was injured and was not wanted at the restaurant. As a result of his injury, he received $270.00 per week as compensation for lost wages from the period October 7, 1985 through February 12, 1986. This was as opposed to his earnings of $500.00 per week plus benefits when he was discharged which, Mr. Oberoi contends, amounts to $3,000.00 in lost earnings for the period in question. After February 12, 1986, he received no more wage loss benefits. Petitioner claims that prior to his injury he was in generally good health admitting to a prior history of low back problems which occurred from four to five months before coming to work at Baxter's. He contends that this was not the injury he received while at work there. While he was working, he claims, he was paying for his own medical insurance but when he spoke with his company after the injury, he was advised that since the injuries took place at work, he should file for worker's compensation benefits instead. When Petitioner came back to work after the three day time off at the time of the second injury, he discussed with the Schoenbaums certain changes in the menu, and other matters which they wanted changed, but contends that at that time there was no discussion about the overall cleanliness of the restaurant or other discrepancies which they now claim support their termination of his services. He claims there was no discussion of his work performance at any time or any indication they were dissatisfied with his accomplishment of his duties. Mr. and Mrs. Schoenbaum, who are the main owners of Jady's, Inc., also have an extensive background in the restaurant business and claim this is the first discrimination complaint ever filed against them. The Schoenbaums decided, at the time they hired Petitioner, to put him in the restaurant business with the understanding he was to get a salary and a 10% equity position if the restaurant made money for fifteen months. The arrangement did not work out. As a result of what the Schoenbaum's consider Petitioner's poor management, the restaurant was losing money at a steady rate. They terminated his employment, reluctantly, because they did not want to run the restaurant themselves. The decision was not made frivolously. The decision to discharge Petitioner was made after an extended period of observation during which they determined, among other things, that Petitioner's daily cash reports for two months were all incorrect. As of October 30, 1986, the restaurant had lost over $100,000.00 and Mr. Oberoi was discharged because he had done a poor job in its operation, had demonstrated a lack of motivation, and appeared to be uninterested in what was going on. He was totally responsible for the operation and the Schoenbaums attribute the financial loss they sustained directly to his inadequate management and operational skills. When the Schoenbaums began to realize they would have to terminate Mr. Oberoi's services, they asked each of the opening managers to write down items they found when they came to work which should have been done the night before. There were many. In addition, the bank utilized by the restaurant had reported that charge slips were not being filled out properly. Sales appeared to be going down. Mr. Oberoi often did not come to work on time and closed the restaurant early, and waitresses were given keys to come in and open up without supervision when it was Petitioner's responsibility to be there. During the three days in August, 1985 that Petitioner was off after his second accident, Mrs. Schoenbaum inspected the facility and found it to be filthy. Food was not stored properly, the refrigerator was dirty, and other defects in operation were clearly obvious. When the Schoenbaums talked with Mr. Oberoi on his return, they relate, he admitted he was not performing properly. They counseled with him, pointing out where he needed to improve and put him on probation. Improvement was not, however, forthcoming. In light of all the continuing deficiencies in Petitioner's performance and considering the fact that the restaurant was losing money, the Schoenbaums decided the situation could not continue and on October 10, 1985, discharged Mr. Oberoi in the presence of Mr. Hershorin. Mr. Schoenbaum confirms Mrs. Schoenbaum's testimony. As he observed it, Petitioner's performance in the beginning was acceptable and they tried to work together as a team to overcome the problems inherent in the start up of a restaurant operation. As time went on, things did not get any better but consistent with his management style, Mr. Schoenbaum tried to allow Petitioner to manage the restaurant without over supervision because he felt Petitioner had the background to get the job done. According to Mr. Schoenbaum, cleanliness, food quality, and the serving of a reasonable product at a reasonable price are paramount considerations in the operation of a restaurant and under Petitioner's management, the restaurant was not meeting those goals. Mr. Schoenbaum began to feel that though Petitioner was trying, he was not succeeding in running a quality operation. From time to time, when Mr. Schoenbaum would come into the restaurant, he would see Petitioner sitting and talking with people rather than managing and supervising. As a result of his concern, Mr. Schoenbaum warned Mr. Oberoi of his dissatisfaction and gave him an ultimatum that the deficiencies must be corrected. Mr. Hershorin, part owner of the restaurant, also confirms the Schoenbaum's observations. Based on his observations and experience in the restaurant business, it was his opinion that Petitioner's operation was not good. Mrs. Schoenbaum asked him to go in and handle the restaurant for the three days Mr. Oberoi was gone in August, 1985. When he did, he found the food in the refrigerator smelled; there was accumulated residue on the racks; food had spoiled; kitchen equipment was not even superficially clean; there was residue on the floor; and in sum, the general housekeeping was poor. Mr. Hershorin was present when the Schoenbaums met with Petitioner to discuss his performance and how the operation could be improved. He felt the Schoenbaums wanted the discussions to be of a positive nature to help Petitioner improve. They told him what needed to be done and put him on probation for a period, and it was clear to Mr. Hershorin that Petitioner understood what was being said to him and his status. Unfortunately, nothing changed as a result of this counseling and ultimately the Schoenbaums had to terminate Petitioner. Petitioner denies any counseling prior to termination or any probationary period being imposed. He claims the Schoenbaums did not discuss his work performance with him at any time, nor did they discuss shortages, lack of proper paper work, erroneous deposits, failure to insure that charge clips were filled out properly, or that he was allegedly leaving equipment on over night. Mr. Oberoi emphatically contends nothing was said about his performance until after he filed his complaint. Both Mr. Schoenbaum and Mr. Hershorin deny knowing that Petitioner had filed a worker's compensation claim or that his discharge was as a result of his incapacitation subsequent to his injury. They contend, as does Mrs. Schoenbaum, and it is found, that Petitioner's injury had no bearing on his termination and his disability was not the cause thereof. Petitioner claims he was never considered disabled prior to coming to work at Baxter's and had never filed a Worker's Compensation claim prior to the ones resulting from his injuries there. A Worker's Compensation Order, introduced by Respondents, however, indicates that Petitioner was injured twice before, in 1983 and 1984, and suffered permanent injury. Admitting this on cross examination, Petitioner contends he was totally recovered at the time of the current injuries and that the worker's compensation form admitting to prior injury was signed at the suggestion of his attorney to facilitate settlement of a collateral lawsuit. Mr. Oberoi also appears to have placed substantial pressure on Mr. Brockway, another employee at the restaurant, to execute a false affidavit. Mr. Brockway claims Mr. Oberoi contacted him so often, he ultimately signed the affidavit merely to be left alone and during the week prior to the hearing, he was again contacted by Petitioner with another affidavit which would indicate that Petitioner was discharged because of his injury. Mr. Brockway declined to sign it. Though Petitioner contends now he is unemployed, he is the principal owner of a corporation which operates a restaurant at Sarasota Square Mall. Mr. Oberoi contends that the work there is done by his family and that he has no part in the operation. This is disputed by Mr. Hershorin who claims to have seen Petitioner behind the counter there on at least two occasions and working in the area on at least three other occasions. Further, when Mrs. Schoenbaum called out there prior to hearing, she was advised to talk with Petitioner who was totally in charge of the operation. Based on the above, Petitioner's credibility is suspect and considering the evidence as a whole, it is found that Petitioner's performance at Baxter's restaurant during the time he was manager there was, for the most part, unsatisfactory. It is that unsatisfactory performance which culminated in his discharge, not the fact that he was injured, filed a worker's compensation claim, or was disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 1st day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: Robert D. Turffs, Esquire 1444 First Street Sarasota, Florida 34236 Sue Schoenbaum Vice-President Jady's Inc. 4201 Deepwater Lane Tampa, Florida 33615 Donald A. Griffin Executive Director Florida Commission on Human Relations Bldg. F., Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel FCHR Bldg. F., Suite 240 325 John Knox Rd. Tallahassee, Florida 32399-1925 Margaret Agerton Clerk FCHR Bldg. F., Suite 140 325 John Knox Rd. Tallahassee, Florida 32399-1925
The Issue Whether Petitioner established that Respondent is an "employer" under the Florida Civil Rights Act (FCRA), section 760.02(7), Florida Statutes (2011),1/ in order to confer jurisdiction on the Florida Commission on Human Relations (Commission); and Whether Petitioner established by a preponderance of the evidence that Respondent retaliated against Petitioner for filing a complaint with the federal Equal Employment Opportunity Commission (EEOC), in violation of the FCRA, section 760.10(7).
Findings Of Fact Ms. Hill is an African-American female who began working at a Subway restaurant located in Winter Haven, Florida, as a sandwich artist in 2005. By 2007, Ms. Hill had been promoted to an assistant manager, and charged with opening the restaurant. Ms. Hill's responsibilities for opening the restaurant required her to be at work by 8:30 a.m. in order to start baking the bread for the day's sandwiches and preparing the sandwich toppings, so that the restaurant could open by 10:00 a.m. As the assistant manager, Ms. Hill earned $9.25 an hour. Goga Bap purchased the Subway restaurant where Ms. Hill worked, located in Winter Haven, Florida, in February 2009. Following Goga Bap's purchase, Mr. Patel hired his family members as managers and employees in the restaurant. At the time of the purchase, Mr. Patel hired Ms. Hill as a sandwich artist at $9.00 an hour. Although she was no longer an assistant manager, Ms. Hill kept her duties of opening the restaurant. Goga Bap owns only one Subway restaurant franchise, and during the relevant time period, Mr. Patel was Goga Bap's sole shareholder. Mr. Patel and his wife own another Subway restaurant, located in Auburndale, Florida, through a separate legal entity, Om Shakti Corporation. This second Subway franchise is operated independently of the Subway franchise owned and operated by Goga Bap. Further, Mr. Patel owns a minority interest in two Subway franchises in Jacksonville, Florida. The record shows that the franchises in Winter Haven, Auburndale, and Jacksonville are separate corporate entities, with separate employees, separate managers, separate business accounts, and separate tax identification numbers. Each Subway franchise employs less than 15 employees. Moreover, even if one considered the restaurants in which Mr. Patel owns a majority interest, the combined number of employees is less than 15. At most, the two restaurants combined for 13 employees in any given week during 2010 and 2011. The Subway franchises in Jacksonville, Florida, in which Mr. Patel owns a minority interest, each hired six to seven employees. The payroll records show that Goga Bap never employed 15 or more employees in any week in either 2010 or 2011. As noted earlier, Ms. Hill's workday was scheduled to begin at 8:30 a.m. in order to open the restaurant by 10:00 a.m. From October 2010 through January 2011, Ms. Hill's attendance and punctuality began to deteriorate; thus, creating a difficulty in opening the restaurant on time. For example, on the dates October 11 through 13, 2010, Ms. Hill was scheduled to work, but called in sick. Consequently, Mr. Patel had to find someone at the last minute to open the store for those dates. In addition to the October dates, the record showed that Ms. Hill did not come to work on time for her scheduled work day of December 15, 2010, and failed to work full days on January 4 and 5, 2011. The result was that Mr. Patel found Ms. Hill an unreliable employee. Because of Ms. Hill's attendance and punctuality problems, Mr. Patel decided to hire an additional employee to work the weekdays with Ms. Hill. The hiring of this additional person cut into the restaurant's profitability. Consequently, beginning in the first work week of January 2011, Ms. Hill's work hours were reduced to offset the increased costs associated with hiring an additional employee. During the first week of January 2011, Ms. Hill's hours were reduced to approximately 17 hours a week. It is noted that for the weeks beginning January 26, 2011, through February 15, 2011, the payroll records show that Ms. Hill worked between 23.53 hours to 28.09 hours a week. However, beginning the week of February 23, 2011, Ms. Hill's work hours returned to the level of approximately 17 hours a week. Mr. Patel credibly testified that Ms. Hill did not tell him that she believed that she was being discriminated against by the reduction of her work hours. Further, Mr. Patel credibly testified that he did not receive any information from Subway's corporate office that Ms. Hill had contacted Subway that she believed that Mr. Patel was discriminating against her. Mr. Patel credibly testified that prior to reducing Ms. Hill's hours in early January 2011, he had not received Ms. Hill's EEOC complaint. In fact, the record shows that Ms. Hill's work hours had been reduced before she filed the EEOC complaint on January 31, 2011. Thus, she failed to show that the reduction of her work hours was a result of retaliation. Ms. Hill did not bring forward any evidence showing that Goga Bap falsely provided information on any government forms. There was no credible evidence showing that the decision to reduce Ms. Hill's work hours was tied or had any nexus to Ms. Hill's EEOC complaint filed on January 31, 2011.
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 of dismissing Ms. Hill's Petition for Relief based on lack of jurisdiction because Goga Bap Corporation, does not meet the statutory definition of an employer; or in the alternative, dismiss Ms. Hill's Petition for Relief because she failed to establish her retaliation claim. DONE AND ENTERED this 7th day of January, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 7th day of January, 2013.
Findings Of Fact Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue the beverage license for which petitioner has applied. DONE and ENTERED this 15th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200 Ft. Lauderdale, Florida 33316 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
