The Issue The issues concern an Administrative Complaint drawn by Petitioner against Respondent calling for the revocation of his permit to display and sell captive animals. See Section 372.921, Florida Statutes, and Rule 39-5.004, Florida Administrative Code.
Findings Of Fact For a number of years, Respondent has been permitted in Florida to keep captive wild animals for public display and sale in accordance with Section 372.921, Florida Statutes. Those animals were Class I and II animals as defined in Section 372.922, Florida Statutes, as well as unclassified animals. By species this included cougars, lions, tigers, jaguars, leopards, baboons, macaque monkeys, sheep and goats. Now, based upon the Administrative Complaint of June 18, 1991, as amended, Petitioner would revoke the existing permit issued under Section 372.921, Florida Statutes, for the period July 1, 1991 through June 30, 1992. The basis for the Administrative Complaint pertains to alleged findings of guilt for 14 charges of the inappropriate confinement of animals without sufficient food dating from March 26, 1991 and four other instances of violation of captive wildlife laws which Petitioner says Respondent is answerable for beginning in February 1978. Under the circumstances and in accordance with review criteria set in Rule 39.5004, Florida Administrative Code, speaking to the propriety of revocation, Petitioner seeks revocation. In the case of State of Florida v. Bobby Franklin Steele, No. 77-288MM, Sumter County, Florida, Respondent entered a plea of nolo contendere to maintaining wildlife in an unsafe manner and was adjudicated guilty, fined in the amount of $50 and placed on probation for 45 days. This plea was made on February 7, 1978. On that same date in Case No. 77-287MM in the same court, Respondent pled nolo contendere to failure to meet minimum requirements for captive wildlife for which he was found guilty, fined $50 and placed on probation for 45 days. These were wildlife violations within the meaning of Chapter 372, Florida Statutes, and its attendant rules of the Game and Fresh Water Fish Commission. The facts involved with those convictions pertain to Respondent's maintaining wildlife in his son's automotive mechanic and maintenance shop in cages build at one end of the building. The animals in question were cougars, tigers and monkeys. One cougar was leashed to an attachment to the wall, pipe or board, and was sitting on top of a table out of its cage when the violation was noted. This cougar in its location was considered to be unsafe for housing it in a potentially public place. The cougar is a Classs II animal. When shown an abstract from the court files of Palm Beach County, Florida, pertaining to Case No. 79-1461MM A06, unlawful confinement in cage w/ failure to maintain minimum specification, violation date February 18, 1979, and Case No. 79-1459MM AO6, charge and disposition, same as the previous case, Respondent testified that he paid a $50 fine for these violations, and that testimony is credited. He identifies that the animals in question were trained animals that he worked with on a daily basis, including "Tom Tom", a cougar, a Giben ape and a zebra. These violations pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Sr., Case No. 78-325MM, Sumter County, Florida, on February 27, 1979, Respondent pled nolo contendere to maintaining wildlife in unsanitary and unsafe conditions and was adjudged guilty and paid a fine of $49. This violation pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Case No. 87- 000917-MMA, Seminole County, Florida, Respondent pled nolo contendere, on July 6, 1987, to violation of transportation requirements for wildlife and illegal possession of wildlife in captivity. He was adjudicated guilty, given a year of supervised probation and made to pay $75 in costs. These violations related to Chapter 372, Florida Statutes, and attendant rules of the Florida Game and Fresh Water Fish Commission. Factually, Respondent was stopped while transporting a male African lion in the passenger seat of an open convertible. The lion is a Class I animal. The lion was, according to Respondent, in the automobile because a photographer from an international magazine was doing an article to include a promotional photographic shoot. The lion had a harness with a leash which was entwined through the seatbelt of the car. Such an arrangement created a potential that the animal might escape and endanger the public if he chewed through the leash and seatbelt. In 1987 in a court proceeding in Marion County, Florida, a guilty verdict was rendered against Respondent for the illegal transfer of a lion to an unlicensed person. The violation in Marion County pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. On March 26, 1991, in the case of State of Florida v. Bobby F. Steele, Case No. 90-2292MMGF, Lake County, Florida, Respondent was convicted of 14 counts of maintaining animals without sufficient food, fined $500 and placed on one year probation. As it pertains to that series of violations in March 1991 in Lake County, Florida, the animals involved in the 14 count conviction were 9 cougars, 3 bobcats, 1 lion and 1 tiger. By observations of Captain Barry Cook, an employee for Petitioner who has wildlife experience, the animals in question were malnourished to the extent that their ribs and other bones were protruding. An inspection of Respondent's premises where the animals were being maintained revealed that there was not sufficient food for the animals to the extent of not having enough food for one animal for one day. At the time that these observations were made about the animals' condition, Respondent told Captain Cook that Respondent was doing the best he could and it was an economic management related problem that caused the lack of food. Respondent did not mention that he had food available in another location. This latter statement made by Respondent at hearing and his contention that the animals were not malnourished do not suffice. Whether food was available in another location or not fails to excuse the condition of the animals which Captain Cook, in his experience, which is credited, observed to be a condition in the animals that was only exceeded in its gravity by one other case in Captain Cook's experience. The animals in question were removed by the United States Department of Agriculture, Animal and Health Inspection Service, who were present while Captain Cook inspected the Respondent's facility in the Summer of 1990.
Recommendation Based upon the facts found and conclusions of law reached, it is hereby RECOMMENDED that a Final Order be entered which revokes the Respondent's permit to keep wild animals in captivity for purposes of display or sale. See Section 372.921, Florida Statutes. DONE and ENTERED this 12th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS 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 12th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed facts of the parties. Petitioner's facts: 1-12, 13 except last sentence--subordinate to facts found. That sentence is rejected as hearsay, not for purposes of corroboration. 14--subordinate to facts found. 15--rejected in that no official action was taken in Pennsylvania such that a conclusion could be reached that a violation had occurred in another jurisdiction. 16--rejected as an aggravating circumstance. 17--rejected in its discussion of borderline compliance or bare compliance. Any form of compliance is acceptable. It is only the unacceptable conduct which is punishable. 18--rejected as it attempts to create some inference concerning Respondent's conduct. Respondent's facts: 1-4 and the first sentence of paragraph 5--are subordinate to facts found. The second sentence is rejected in its attempt to describe mitigation. 6--The discussion in the first sentence does not excuse Respondent's conduct. The latter discussion concerning the situation in Pennsylvania is not relevant for reasons described and discussed about proposed facts by the Petitioner. 7--The fact that an appeal is undertaken does not prohibit the use of that conviction in deciding the outcome here. 8--Revocation is a severe choice; however, it is warranted on this occasion. COPIES FURNISHED: James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 Don Gleason, Esquire 307 Northwest 3rd Street Ocala, FL 32670 Colonel Robert M. Brantly Executive Director Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 James Antista General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue Whether Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), committed the offenses alleged in the Administrative Complaint dated September 30, 2014, and if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), has operated a restaurant known as the Banana Hut, which is located at 13740 Southwest 152nd Street, Miami, Florida (the subject premises). Respondent is subject to the regulation of the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner). Respondent is required to comply with all relevant provisions set forth in chapter 509, Florida Statutes; Florida Administrative Code Chapter 61C, and the Food Code.2/ Respondent’s license number is 2329056. There was no evidence that Respondent’s license has been previously disciplined by Petitioner. At all times relevant to this proceeding, Michael George Brandon was Respondent’s owner. Douglas Morgadanes is employed by Petitioner as a senior sanitation and safety specialist. Mr. Morgadanes is experienced and trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. Mr. Morgadanes has been a sanitation and safety specialist employed by Petitioner for approximately 18 years. He has been designated as a senior sanitation and safety specialist for the last nine years. Mr. Morgadanes typically performs between 700 and 800 restaurant inspections each year. On September 23, 2014, beginning at 9:37 a.m., Mr. Morgadanes performed a routine inspection of the subject premises (the initial inspection). The Banana Hut was open for business during the initial inspection. As part of the initial inspection, Mr. Morgadanes prepared a Food Service Inspection Report (Petitioner’s Exhibit 2) setting forth his findings. Mr. Morgadanes prepared this report utilizing an iPad while at the subject premises. Mr. Morgadanes testified, credibly, that he asked some unidentified person from the establishment to accompany him while he performed the initial inspection, but no one accompanied him. Garth Vassell is a cook at the subject premises. Mr. Vassell was on the premises when Mr. Morgadanes conducted the initial inspection, but he was not asked by Mr. Morgadanes to accompany him during that inspection. During the course of the initial inspection, Mr. Morgadanes observed approximately ten live roaches in a storage closet and ten or more live roaches in the kitchen. After the inspection, Mr. Morgadanes showed Mr. Vassell the areas where he had observed the live roaches. Mr. Morgadanes also showed Mr. Vassell a dead roach. Mr. Vassell did not observe live roaches. Mr. Morgadanes telephoned his office and notified his superiors of his observations. Before Mr. Morgadanes left the premises, Petitioner entered an emergency order that suspended Respondent’s licensure and closed the subject premises (the emergency order). The emergency order found that “The risk of food borne illness from a vermin infestation constitutes an immediate serious threat to public health and safety.” When Mr. Brandon arrived at the subject premises, Mr. Morgadanes had completed his initial inspection and was affixing a sign to the entry door of the subject premises that stated that the restaurant was closed. Mr. Morgadanes showed Mr. Brandon the areas where he observed the live roaches and reviewed his inspection report (Petitioner’s Exhibit 2) with Mr. Brandon. Mr. Brandon signed the inspection report at approximately 11:30 a.m. Mr. Morgadanes left the premises shortly thereafter. At the request of Mr. Brandon, a callback inspection was conducted by Mr. Morgadanes and Zuleima Chow beginning at 3:14 p.m., on the afternoon of the initial inspection (September 23, 2014). No evidence of roaches was observed during the callback inspection.3/ As a result of the callback inspection, Petitioner immediately vacated its emergency order. On September 30, 2014, Petitioner filed the Administrative Complaint that initiated this proceeding. Based on Mr. Morgadanes’ observing live roaches during his initial inspection, Petitioner charged that Respondent violated section 509.221(7), which provides as follows: (7) The operator of any establishment licensed under this chapter shall take effective measures to protect the establishment against the entrance and the breeding on the premises of all vermin. Any room in such establishment infested with such vermin shall be fumigated, disinfected, renovated, or other corrective action taken until the vermin are exterminated. Petitioner classified the alleged violation as a “high priority” violation. A “high priority item” is, pursuant to rule 61C- 1.001(17), an item defined in the Food Code as a “Priority Item.” Rule 61C-1.005(5)(a) defines a high priority violation as follows: (a) “High priority violation” means a violation of a high priority item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule. The presence in a restaurant of vermin such as roaches presents a risk to the public because such vermin can carry diseases that can be transmitted to patrons who consume food that has been contaminated by the vermin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Negril Cuisine, Inc., d/b/a Banana Hut guilty of violating section 509.221(7), Florida Statutes, as alleged in the Administrative Complaint and impose an administrative fine in the amount of $500.00 for that violation. DONE AND ENTERED this 10th day of March, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of March, 2015.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Modley is a resident of Shalimar, Florida. He is an African-American male, who at the time of the hearing was 35 years of age. At the time of the hearing, he was employed by Winn Dixie, Inc., as a meat cutter. The Fresh Market is in the grocery business, operates many stores, and is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. The Fresh Market operates a store in Destin, Florida. On November 8, 2006, Mr. Modley applied for a "meat/seafood" position in the Destin store. Mr. Modley had previous experience in similar positions at Publix and Sam's Club. This position required Mr. Modley to process meat and seafood to be sold at retail and to provide customer service. The application submitted by Mr. Modley had upon it a question that stated, "Have you been convicted of a crime in the past 10 years?" Mr. Modley typed in "No." The application also had upon it the following statement, in pertinent part: "I certify that the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal. I authorize The Fresh Market, Inc. to verify all statements contained in this application and to make any necessary reference checks except as limited above for my present employer." The Fresh Market employed Mr. Modley as a meat cutter subsequent to his application. Mr. Modley was aware at the inception of his employment on January 19, 2007, that a person from the southern part of the state would soon arrive and assume the position of meat manager. Mr. Modley assumed, without any foundation whatsoever, that he was next in line to become meat manager. Saul Zaute, an experienced meat manager, who had been working for The Fresh Market in South Florida, assumed the position of meat manager shortly after Mr. Modley began working as a meat cutter. After 90 days of employment, Mr. Modley became eligible for certain fringe benefits. During an open enrollment period for insurance benefits, Mr. Modley sought insurance coverage for his wife and his "domestic partner." On May 7, 2007, Mr. Modley completed and signed a Declaration of Domestic Partnership Form declaring "under penalty of perjury" that he and his "domestic partner" were "not married to anyone" and that he and his "domestic partner" met all criteria for "domestic partnership." On this application he did not mention his wife. Following open enrollment periods, the Fresh Market's Benefits Department conducts a review of all applications for domestic partner benefits to ensure that the applicants meet the criteria specified on the Declaration of Domestic Partnership Form. The employee assigned to accomplish this was Martha Holt. Ms. Holt worked in Greensboro, North Carolina, and she was not acquainted with Mr. Modley. Ms. Holt reviewed the 14 domestic partner applications received during open enrollment by The Fresh Market. She did this by conducting a public records search on the internet. Ms. Holt noted the first application for insurance benefits listed a spouse. Ms. Holt was unable to find any record of Mr. Modley having divorced his wife. While searching for information that might illuminate Mr. Modley's marital status, Ms. Holt discovered that he had a criminal history. This became important because of Mr. Modley's assertion on his employment application that he had not been convicted of a crime in the past 10 years. It is noted at this point that Mr. Modley had not been convicted of any crime because judgment was withheld on his several criminal cases. When a judge withholds adjudication, the defendant has not been convicted, even though he may have been found guilty. Ms. Holt relayed the discovery of Mr. Modley's criminal history to her supervisor who informed Bill Bailey, Vice President of Human Resources for The Fresh Market, and Christine Caldwell, Regional Human Resources Coordinator. Mr. Bailey conducted his own Internet research and discovered that Mr. Modley was serving a two-year supervised probation for a felony, which was committed on November 30, 2005. Mr. Bailey erroneously concluded that Mr. Modley had falsified his application for employment. At the request of Mr. Bailey, District Manager Debbie Smart asked Mr. Modley directly if he had been convicted of a felony. Mr. Modley denied having any felony convictions. Mr. Modley, while not exactly dissembling, was not being helpful in illuminating this conundrum. A more honest answer would have informed Ms. Smart that he had been found guilty of several felonies, but had never been adjudicated and, therefore, convicted. Subsequent to Ms. Smart's request, on August 23, 2007, Mr. Modley signed a consent form authorizing The Fresh Market to employ an outside agency to conduct a more detailed criminal background check. The background check, conducted by an outside agency named Insight, resulted in a report indicating guilty findings with resultant sentences of 14 counts of uttering, larceny, procuring for prostitution, using false information to obtain a driver's license, and a failure to appear. Nothing in the Insight report indicates that Mr. Modley was found adjudicated of a felony. Melvin Hamilton was the regional vice-president charged with supervising the store in which Mr. Modley worked. When he was informed of the perceived discrepancy regarding Mr. Modley's job application, he decided to terminate Mr. Modley. No evidence was produced that indicated Mr. Hamilton was aware of Mr. Modley's race, and, in fact, Mr. Hamilton is an African-American. Mr. Hamilton's decision to discharge Mr. Modley was based on information that, at least in a technical sense, was incorrect. However incorrect the basis, the decision was not grounded in racial discrimination. During the time period December 2005 and February 2008, The Fresh Market terminated seven employees for falsifying their employment applications. Of those seven employees, four were white and three were African-American. When Saul Zaute left in late July 2007, The Fresh Market advertised a vacancy for the position of meat manager. This was done by a posting in the store and an advertisement in a local newspaper. This is the method normally used by The Fresh Market when seeking applicants for a position. At no time did Mr. Modley apply for the job of meat manager even though the position was advertised similarly to other positions. It appears that he continued under the erroneous belief that when he began his employment, The Fresh Market was aware that he eventually desired to be meat manager. How he came to that conclusion was not explained. The employee hired as meat manager was Gary Arnold. Mr. Arnold had many years of experience as a meat manager. Mr. Arnold had owned an operated a meat market for 17 years and had served as meat manager for two facilities totaling 19 years. The Fresh Market has an active anti-discrimination program and maintains policies and procedures to effect that program. Mr. Modley did not complain about any discrimination pursuant to those policies or in any other manner during the time he was employed by The Fresh Market.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Carlos T. Modley be dismissed. DONE AND ENTERED this 10th day of June, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of June, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Regina Alberini Young, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 Carlos T. Modley Post Office Box 430 Shalimar, Florida 32579 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, 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 2nd day of February, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent, Tony's Prime Meats, Inc., (Tony's) is a Florida corporation which was dissolved for failure to file an annual report on August 13, 1993. The corporation is still doing business under the fictitious name of Scotti's Meats, Co., in Manatee County, Florida, at 510 7th Street East, Bradenton, Florida 34208-9020. At the time of the alleged violation, Respondent, Tony's Prime Meats, Inc. was an active and current Florida corporation. Respondent, Anthony Scotti, Jr., is a shareholder in, the registered agent for, and a corporate officer of, Tony's. Anthony Scotti, Jr. is shown on the corporate records as Anthony G. Scotti, and is a resident of Sarasota County, Florida. The Department is the agency of the State of Florida charged with the administration and enforcement of the provisions of Chapter 585, Florida Statutes. Respondents are engaged in the preparation of, and the offering for sale, animal products capable of use as human food and intended to be used as human food, pursuant to Chapter 585, Florida Statute. Tony's holds a Grant of Inspection, Number 335/P, pursuant to Section 585.74, Florida Statutes, from the Department. On June 2, 1993, meat inspection at Tony's had been withheld by Ernest Tipton, Meat Inspector with the Department, because of sanitary standards violations. At about 8:00 a.m. on June 4, 1993, Inspector Tipton visited Tony's to check on the facility. Arnie Lahtinen, an employee of Tony's who was in charge of the plant during the absence of Anthony Scotti, was present at the facility during Inspector Tipton's visit. During Inspector Tipton's visit, Lahtinen was performing plant improvement tasks in accordance with deficiencies noted when inspection had been withheld on June 2, 1993. Inspector Tipton did not observe the presence of any other employee in the establishment or observe any visible signs of meat processing occurring or observe any evidence that meat processing had been occurring prior to his visit. Inspector Tipton departed Tony's about 8:30 a.m. on June 4, 1993, but returned later in the morning around 10:00 a.m. to pick up some papers. Upon his return, Inspector Tipton observed a car parked at the facility which he identified as belonging to an employee of Tony's named Nick. However, there was no direct evidence that the car belonged to Nick or that Nick was present in the facility during the time in question on June 4, 1993. Inspector Tipton attempted to gain entry but found the facility locked. After ringing the doorbell and getting no response, Inspector Tipton then knocked on the back door but again, received no response. Since Lahtinen had been present in the facility during Inspector Tipton's earlier visit, he assumed Lahtinen was still in the facility, that meat processing was occurring in the facility, and that he was being denied access to the facility in violation of Chapter 585, Florida Statutes. Inspector Tipton determined that his best course of action was to contact his supervisor, Melody Cara. After contacting Ms. Cara, Inspector Tipton contacted the police on the advice of Ms. Cara. Upon her arrival at the facility, Ms. Cara made a similar attempt to gain entry by ringing the door bell and knocking on the door but there was no response. Anthony Scotti arrived at the facility shortly after Ms. Cara and the police officer, and immediately unlocked the facility to allow Ms. Cara, Inspector Tipton and the police officer entry into the facility. When Inspector Tipton, Ms. Cara, Scotti and the police officer entered the facility, one of them turned the lights on in the lobby area and just a short time later Ms. Cara turned the lights on in the processing room. As Scotti and Ms. Cara were entering the processing room, Lahtinen came out of the processing room. The record does not reflect whether Lahtinen heard the door bell ring or the knocking on the door on either occasion and, if he did, why he did not respond. Other than Lahtinen, no other employees were observed in the facility at this time. Upon entering the lobby area, the police officer found a knife and an apron upon which there was a substance that resembled blood. No analysis of the substance on the apron and knife was conducted and the material was never identified as blood. The tables and the floors in the processing room were wet as if they had been washed. However, there was no direct evidence that meat processing had been occurring before the entry. There is insufficient evidence to establish facts to show that Inspector Tipton or Ms. Cara were intentionally denied entry into Tony's facility, or that meat processing had been occurring in Tony's establishment during the time in question on June 4, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing both Count I and Count II of the Administrative Complaint. It is further recommended that the request for attorney's fees and costs be denied without prejudice to the Respondents filing a petition under Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7087 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5); 6(7); 7(7,8); 8(9); 9(10,11); and 10(12). Proposed finding of fact 11 is neither material nor relevant to this proceeding. Proposed findings of fact 4 - 8 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. Proposed findings of fact 7 and 8 indicate that the parties were denied access which is rejected as not supported by competent substantial evidence in the record. Proposed finding of fact 10 indicates a bloody knife and apron were found on the premises. While a knife and apron with a substance appearing to be blood was found, it was never established that the substance was blood. Respondents' Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5,6); 6(7); 7(7,9); 8(10); 9(10-12)); 11(10); 12(14)and 13(11). Proposed finding of fact 10 is neither material nor relevant to this proceeding. Proposed findings of fact 4,5,6,7 & 9 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Isadore F. Rommes, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Thomas M. Fitzgibbons, Esquire SouthTrust Bank Plaza 1800 Second Street, Suite 775 Sarasota, Florida 34236 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact For more than 20 years, petitioner has worked as a state employee in law enforcement or as a teacher of persons' training for law enforcement work. From November of 1955 until September of 1976, he was employed as a special agent by the Florida Sheriffs' Bureau. From October of 1965 to March of 1972, he taught at Florida State University, first as an instructor in criminology, then as an assistant professor. On March 20, 1972, petitioner began working for respondent, in its Division of Animal Industry, as an agricultural investigator supervisor in the livestock theft program. Six months later petitioner attained career service status in this position, which has position number 0959. Position number 0959 is the only position within the single agency class of agricultural investigator supervisor. During the 1976 legislative session, and even before the session began, at committee hearings conducted in the course of the appropriations process, there was talk of abolishing the livestock theft program, a proposal which respondent's personnel resisted to the extent practicable. Although petitioner's name was never mentioned in these deliberations, on at least one occasion a legislator made specific reference to abolishing the position of agricultural investigator supervisor. After passage of the appropriations bill by the 1976 legislature, the Hon. Jack D. Gordon, Chairman, Senate Committee on Ways and Means, and the Hon. Edmond M. Fortune, Chairman, House Committee on Appropriations, wrote a letter to the Hon. J. H. Williams, Lieutenant Governor and Secretary of Administration, and the Hon. Ernest Ellison, Auditor General, to which they attached "computerized program component work papers for . . . use in development of the agencies' approved operating budgets for 1976-77." Respondent's Exhibit No. 1. The fourth item on the attachment reads, as follows: REDUCTION IN LIVESTOCK THEFT PROGRAM AGRICULTURAL INVESTIGATOR SPECIALIST; AGRICULTURAL INVESTIGATORS At no time has there been a position within respondent department called "agricultural investigator specialist." Notwithstanding the use of the title "agricultural investigator specialist," the legislature intended to abolish the position of "agricultural investigator supervisor." Mr. C. Douglas Shelby, now assistant director of administration for respondent, was respondent's personnel officer in June of 1976; the Hon. Doyle Conner, head of respondent, had delegated to Mr. Shelby authority to deal with personnel matters generally. When the appropriations bill passed, Mr. Shelby and Jerry Gullo, a training manager for respondent, began work on implementing the legislation. After considering Emergency Rule 22 AER 76-1, which took effect on June 15, 1976, Mr. Gullo drafted a letter to petitioner for Mr. Shelby's signature, dated June 16, 1976, notifying petitioner that his job would no longer exist as of the close of business on June 30, 1976. The letter was mailed on June 16, 1976; petitioner received notice of the letter's arrival on June 17, 1976, but actually saw it and read it for the first time on June 18, 1976. A copy of the letter was admitted in evidence as respondent's exhibit No. 5. In part, the letter advised petitioner that "you have the right to request a demotion to a class in which you previously held permanent status or reassignment in a class in which you held permanent status in lieu of layoff . . ." On receipt of the letter dated June 16, 1976, petitioner drafted a letter requesting reassignment or demotion, but when, on June 21, 1976, Mr. Gullo told petitioner that there would be no possibility of reassignment or demotion under Emergency Rule 22 AER 76-1, because, said Mr. Gullo, petitioner had not attained career service status in any class other than that of agricultural investigator supervisor, petitioner decided there would be no point in submitting the letter he had drafted and did not do so. Also on June 21, 1976, official notice of the abolition of respondents position number 0959 was mailed by respondent to Mr. Kennison. (Respondent's exhibit No. 3) Petitioner had no further discussion with respondent's personnel about the layoff before he left respondent's employ. On June 30, 1976, Lieutenant Governor William, acting as Secretary of Administration, and in response to a letter from Mr. Shelby, which was received in evidence as respondent's exhibit No. 3, approved "[s]tatewide within the Division of Animal Industry," respondent's exhibit No. 4, as the competitive area for purposes of Emergency Rule 22 AER 76-1. Id. On July 1, 1976, petitioner was out of a job, despite the good work he had done in the livestock theft program and his many years of state employment. Petitioner filed a timely appeal with the Career Service Commission. Respondent notified the State Personnel Director of the layoff by letter dated July 12, 1976, which came in evidence as respondent's exhibit No. 2. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976) Respondent submitted no proposed findings of fact. Paragraphs two, three, and five through twelve of petitioner's proposed findings of fact have been adopted, in substance. Paragraph one of petitioner's proposed fact findings has been adopted, in substance, assuming "at all times material hereto" is intended to mean from September 21, 1972, until June 30, 1976, or some portion of that time period. Paragraph four of petitioner's proposed fact findings has been adopted, in substance, except for the reference to respondent's exhibit No. 3, which is a copy of a letter from Mr. Shelby to Mr. Kennison, dated June 21, 1976. Paragraphs thirteen and fourteen of petitioner's proposed fact findings accurately reflect the evidence, but are irrelevant to resolution of the dispute.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's layoff of petitioner be upheld. That petitioner be deemed to have made timely request for demotion or reassignment to a position in a class (other than agricultural investigator supervisor) in which he has held permanent career service status, if any there be. That respondent pay petitioner two weeks' pay at the hourly rate petitioner was earning at the time of the layoff. DONE and ENTERED this 20th day of June, 1977, 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: Jay Hendrickson, Esquire 836 East Lafayette Street Tallahassee, Florida 32301 Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32304 Conley M. Kennison Attn: Mrs. Dorothy Roberts Career Service Commission Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
