The Issue The issue presented is whether Respondent is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed, if any.
Findings Of Fact Respondent is a bakery, primarily selling bagels. Respondent bakes, packages, and sells bagels and other baked products wholesale and retail. In addition, it sells ready-to- eat food in individual portions for consumption on or off the premises, including eggs, bacon, sausage, salads, and soups. It also cuts, packages, and sells meats. Respondent also operates a delivery service and a catering business and is open to the public 24 hours a day, seven days a week. Respondent is regulated by the Department and is routinely inspected by the Department three times a year. Ronald Gagnon is employed by the Department's Bureau of Food and Meat Inspection as a sanitary and safety specialist. He performed a routine inspection of the Respondent's premises on May 26, 2006. Gretchen Rhodes is the sanitation and safety specialist who had been assigned to perform routine inspections of the Respondent, but she was behind schedule in her duties and was covering for her supervisor, Rodney Banks, who was on vacation. Gagnon agreed to perform the inspection of Respondent to assist Rhodes. He had never been on Respondent's premises to inspect it prior to the May 26, 2006, inspection, but he had inspected other bakeries before he inspected Respondent. Gagnon had been employed by the Department as a sanitation and safety specialist since August 2005. After he was hired, he received six months of on-the-job training accompanying other inspectors on inspections before performing an inspection by himself. He also received one week of training by the Department regarding the different statutes and rules relating to food safety. He also underwent standardization that included performing eight inspections of food establishments under the observation of a federal Food and Drug Administration inspector to ensure that he was performing inspections competently. Prior to inspecting Respondent, Gagnon had been performing inspections by himself for approximately five months. According to his estimate, he had performed approximately 300 inspections by then. Of those, only six to eight percent of the inspections he performed had been assigned a "poor" rating, which rating required a re-inspection. Upon entering Respondent's business at about 8:30 a.m., Gagnon told the cashier he was there to inspect the premises and then gave that information to Patricia Marshall, the employee who was in charge at the time. Marshall asked Gagnon to wait for an owner to arrive before he did his inspection, but he advised her that he could perform his inspection as long as there was someone in charge at the business. He invited her to accompany him, but she was busy and did not accompany him during his inspection of the back room and related areas. Shortly after Gagnon's arrival, Marshall telephoned Denise Jimenez, a manager and the wife of one of the owners, and advised her that an inspector was performing an inspection. Mrs. Jimenez did not arrive at the business until after Gagnon had completed his inspection and was preparing his written report. When Gagnon completed his inspection of the back room and related areas, he returned to inspect the retail area where Marshall was working. Although she was with him for some parts of the inspection, she was busy and did not observe him during all of his inspection of the retail area. They did have several conversations, however, regarding specific violations which he noticed. One of those conversations involved the temperature- recording device in the cooling case in the retail area. Gagnon noticed that the measuring device was in the coldest part of the case by the condenser coils; however, to properly measure the temperature of the food in the case, the device should be located in the warmest part of the cooler. Gagnon explained this problem to Marshall, and Marshall subsequently pulled out the wire of the device so that it was no longer working. Another conversation involved the soup that was in the ready-to-eat serving area. The soup was in a stainless steel container called a Bay Marie and had been lowered into a crock pot with a heating element. The container had approximately a quart of soup in it. When Gagnon measured the temperature of the soup, it was at 118 degrees Fahrenheit and not at 135 degrees, the temperature required to prevent the growth of harmful bacteria. At hearing, Gagnon testified that Marshall told him she was going to throw that soup away and make new soup for lunch. Marshall testified, however, that she had made the soup for lunch and it was not yet fully heated. The small amount of soup makes Gagnon's recollection more credible than Marshall's. At any rate, Gagnon told her to throw away the soup, and she did. Gagnon made handwritten notes to record his findings as he performed his inspection. He used the equipment he brought with him as he proceeded. He brought a thermal couple, a digital food thermometer with a probe that could be inserted into food to measure the internal temperature. He had an infrared thermometer to measure surface temperatures. He used these two devices to measure the temperature of food to determine whether it was hot enough or cold enough. If the infrared thermometer showed that the surface temperature was too low or too high, he used the probe thermometer to measure the internal temperature of the food. He also had a flashlight to look into dark areas and test strips to measure the concentration of sanitizer used to clean dishes and cooking utensils to determine whether it was too low or too high. He had alcohol swabs to cleanse the measuring device on the probe thermometer between uses on different foods. Lastly, he had his computer and printer to prepare his report and provide a copy to the business being inspected. After Gagnon concluded his inspection, he prepared a Food Safety Inspection Report while still on Respondent's premises. The numbers on the left margin of those documents represent different classifications of food safety violations. By virtue of his training, Gagnon was familiar with the different classifications and would press the number for the class of violations most closely resembling what he had observed. From the available options, he would then select the description most closely fitting what he observed. This description would be printed in lower case letters. Using bold print following that description, Gagnon wrote what he had actually observed. The computer was programmed to print an asterisk beside certain violations which had been determined by the Department to pose a more serious threat to food safety. These violations are referred to as "critical violations." Since Mrs. Jimenez arrived at the business after Gagnon finished his report, he went through his report with her verbally. She then accompanied him through the premises, starting in the back area. He pointed out to her each item which he had marked as a violation. She remained silent through most of his concerns, not offering any explanations that he might consider in finalizing his report, except for one. She explained to him that the mixer was black on the inside because the cook had been mixing pumpernickel dough which contains coloring that is black. When Gagnon and Mrs. Jimenez went into the retail area, a discussion and then argument ensued regarding the broken temperature-measuring device in the cooling case. Mrs. Jimenez insisted that Gagnon had ordered Marshall to move it, which broke the device; Gagnon denied ordering Marshall to do so. Mrs. Jimenez became quite angry and demanded that Gagnon pay to repair the cooler. She began demanding that Gagnon prove who he was, and he handed her a copy of his inspection report with his name on it and advised her that there was a telephone number for the Department on it if she wanted to call to complain. He then left the business and the confrontation. Gagnon's inspection report cited numerous violations ranging from minor to serious. Eleven of the violations were critical violations as follows: washed utensils were not properly washed; there was a live roach in the proofer box; single-serve gloves were being used more than once for tasks where glove changes were necessary; food employees were not regularly washing their hands; bacon and sausage were held at room temperature, and the soup was at 118 degrees; salads and deli meats were held at above the required temperature; eggs, ham, and cheeses in the walk-in cooler were above the required temperature; desserts were in a case with ice underneath and were, therefore, above the required temperature; eggs in the reach-in cooler and cheese in the cold case were above the required temperature; equipment was not maintaining required temperatures; and there were no dates marked on the ham. Due to the number of critical violations and the number of other violations, Gagnon gave Respondent a rating of "poor," which rating required a re-inspection two weeks later to ascertain if the violations had been corrected. Both Mr. and Mrs. Jimenez called the Department that same day complaining about Gagnon and demanding that the Department immediately send a different inspector to re-inspect the business. They were both advised that the business would be re-inspected in two weeks. Yet, Mr. Jimenez instructed his employees to change nothing so they could prove Gagnon was wrong when the next inspector came. In other words, Jimenez made the decision to not correct the violations noted in Gagnon's report. In the Food Safety Inspection Supplemental Report Gagnon completed after he had left the business, he memorialized that the key lime desserts, bacon, sausage, and soup were destroyed. As to other violations, such as eggs being held at too high a temperature, he released those products for sale after they were properly refrigerated. No competent evidence was offered as to any bias on the part of Gagnon against the business or its employees. The evidence is uncontroverted that he had finished his report before the confrontation over the wire in the cooler began. When he left the business to avoid continuing the confrontation, he left a copy of his report, and no changes are alleged to have been made to his report thereafter. Gretchen Rhodes performed the follow-up inspection on June 7, 2006. She was accompanied by her supervisor, Rodney Banks, due to the reported confrontation on May 26 between Gagnon and Respondent's employees. They observed some of the same violations found by Gagnon on May 26. There were four critical violations found: (1) a food employee in the in-store deli area failed to change single-use gloves and failed to wash his or her hands after the gloves were contaminated; (2) there was no health-risks advisory posted in the in-store deli part of the business although eggs were cooked to order there; (3) salads in the in-store deli cooler were at higher than the required temperature; and (4) heavy rodent droppings were seen in the service closet (utility room) near the ovens. As on May 26, there was no certified food manager present although there were four or more employees present. As on May 26, Rhodes observed furnishings and equipment that were dirty. As to the rodent droppings, John Jimenez, as Respondent's 50 percent owner and Respondent's representative at the final hearing, admitted that the business had a rodent problem and had had that problem since February 2006 when it was discovered. Although attempts had been made to eradicate the rodents, they were still present and the business was still cooking and serving food to the public. On June 7 there were maintenance and cleaning tools stored in the food processing area, including a generator and tires for motor vehicles, thereby creating an area of clutter in which rodents could hide. Rhodes assigned Respondent a rating of "poor" based upon the violations she found, particularly, the presence of rodents. She gave a copy of her Food Safety Inspection Report and of her Food Safety Inspection Supplemental Report to Mrs. Jimenez, who signed that she received them. Rodney Banks, a sanitation and safety supervisor since 1992, accompanied Rhodes on the June 7 inspection. He agreed with her observations and with the violations noted in her report and supplemental report which he reviewed at the conclusion of the inspection. In addition to supervising Gretchen Rhodes, he also supervises Ronald Gagnon and Cynthia Koza. In fact, he had hired Gagnon and has never received a complaint about Gagnon from any of the businesses Gagnon has inspected, except for Respondent's. Cynthia Koza, a sanitation and safety specialist, accompanied Rhodes when Rhodes returned to Respondent's premises on July 5, 2006, for a follow-up inspection. It was normal procedure to have two inspectors for the follow-up inspection if a food establishment had two "poor" ratings in a row. She agreed with Rhodes' observations during the inspection and with the contents of Rhodes' Food Safety Inspection Report and Food Safety Inspection Supplemental Report. The inspectors did not inspect the retail area of Respondent's premises on that date because there were a lot of customers in that area. They did, however, inspect the back area and once again found rodent droppings not only in the service closet but also behind a butcher block table top leaning against the wall by the walk-in cooler. They noticed that the back door of the business was standing open at the time of the inspection and was neither self-closing nor tight-fitting. This observation matched that of Gagnon on May 26 that the back door had gaps with huge openings, thereby allowing rodents and insects to enter the food processing area. The inspectors also noticed that there were chew holes in ceiling tiles near the electric conduit pipes, some ceiling tiles were missing, and there was a hole in the wall in the finishing room. Based upon Rhodes' training and experience, she recognized the chew holes as rodent chew marks. There were also black grease marks around the hole where a rodent's fur brushed against the wall as it squeezed through the hole. As on May 29 and June 7, there was no certified food manager on the premises on July 5 although there were eight employees present at the time. Rhodes again noted in her report the continued presence of clutter and the dirty equipment. Foods in the walk- in cooler still were not maintained at the required low temperature. Rhodes again gave the business a rating of "poor." She gave copies of her Food Safety Inspection Report and Food Safety Inspection Supplemental Report to Mrs. Jimenez. Dr. John Fruin is the Chief of the Bureau of Food and Meat Inspection, Division of Food Safety, of the Department. He reviewed the Food Safety Inspection Reports dated May 26, June 7, and July 5, 2006, and agreed that the proper rating for Respondent was "poor" for each of those reports based upon the number of violations, the number of critical violations, and the presence of rodents. He testified that the three "poor" ratings with repeat violations require that a fine be imposed upon Respondent for the violations observed during each inspection. On May 26 there were six critical violations but some of them were committed more than one time, meriting a fine of $1,375. On June 7 there were fewer critical and non-critical violations, meriting a fine of $950. On July 5 there were still fewer violations, meriting a fine of $300. The total fine recommended by Dr. Fruin, therefore, is $2,625.
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 the violations alleged in the Administrative Complaint and requiring Respondent to pay to the Department an administrative fine in the amount of $2,625 by a date certain. DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 12th of January, 2007. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 John Jimenez TJ Baking, LLC 7562 West Commercial Boulevard Lauderhill, Florida 33319
The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 May, 2011. COPIES FURNISHED: William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact In February of 1983, petitioner Fred D. Wallace began working for respondent as a meat inspector. Although other meat inspectors were assigned to federal facilities for training, he never was. Petitioner feels he was not sent for training because he was black and that his having a bachelor's degree in agriculture had nothing to do with it. He also testified that unfavorable evaluations were attributable to his being black. Except for petitioner's race, the evidence did not establish the race of respondent's employees.
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated October 2, 2012, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 12326 University Mall Court, Tampa, Florida, 33612, holding Permanent Food Service license no. NOS3915662. On September 25, 2012, Douglas Peterson, an experienced sanitation and safety specialist with the Division, performed a routine inspection of Respondent. Mr. Peterson has been employed by the Division for six years and has conducted approximately 1,000 inspections per year. He inspected Subway in the early afternoon, accompanied by one of Respondent's employees, not identified, but described as a young man who was working the counter. Mr. Peterson utilized a personal data assistant to record his findings in an inspection report that he prepared while conducting the inspection. During the inspection, Mr. Peterson observed a number of live roaches in three different areas and recorded his observations in the inspection report. Mr. Peterson counted ten live roaches under the three-compartment sink between the wall and the sink; there were three live roaches in an old reach-in cooler next to the walk-in cooler; and there were four more live roaches under and behind the ice machine. In addition, Mr. Peterson observed dead roaches by the old reach-in cooler next to the walk-in cooler. Mr. Peterson pulled out the reach-in cooler and found more dead roaches in the compressor compartment. Mr. Peterson's testimony regarding the roach activity he observed was credible and unrebutted. A critical violation of the Food Code is a violation that is likely to contribute to food contamination, illness, and other environmental health hazards. The observed presence of 17 live roaches at multiple locations in Respondent's establishment was a "critical violation" of the Food Code, because roaches are capable of transmitting disease to humans by contaminating food and cross-contaminating food contact surfaces. Respondent pointed out that none of the live roaches were observed directly on food contact surfaces. However, the fact that the live roaches were found in dark areas of refuge (in, under, or behind equipment and sinks) in mid-afternoon, while the restaurant was open, does not mean the danger of contamination can be minimized. To the contrary, the presence of a large number of live roaches in multiple areas--including areas near where food is stored and prepared and where dishes are washed--is a significant contamination threat. Due to the large number of live roaches observed in multiple locations, Mr. Peterson determined that the critical violation was significant enough that it required immediate attention, and his inspection report recommended that restaurant operations stop temporarily until the roach infestation was alleviated. Based on Mr. Peterson's report, the Division entered an emergency order of suspension, and Subway was temporarily closed to correct the violation, with a follow-up inspection the next morning. Julian Paz, the store manager, was not present during the inspection, but he arrived after Mr. Peterson had sent his inspection report to the Division for a determination regarding whether an emergency suspension order would be issued. Mr. Peterson discussed the inspection report's findings with Mr. Paz, and Mr. Paz signed the inspection report on behalf of Respondent. At hearing, Mr. Paz described the steps taken by Subway in an attempt to control the presence of roaches. He testified that someone from Orkin comes the first Thursday of every month to perform a routine inspection and pest control service. The mall in which Subway is located also has monthly pest control service. In addition, the Subway restaurant undergoes a Subway corporate inspection at a random time every month. Mr. Paz also described the steps taken by Subway employees, including cleaning the store three or four times a day, sweeping and mopping, and cleaning the surfaces. When there are deliveries, either he or his assistant inspects the boxes for signs of rodent or pest activity. Mr. Paz testified that he thought that both Orkin and the Subway corporate inspector had conducted inspections as recently as the day before Mr. Peterson's inspection. The Division presented no evidence of prior disciplinary action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order determining that Respondent violated rule 6-501.111 of the Food Code and imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 10th day of May, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2013.
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 The issue is whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Harrison’s is licensed by the Division as a permanent food service establishment. Harrison’s license number is 6213138. Laura Kennedy, a sanitation and safety inspector for the Division, conducted a routine inspection of Harrison’s on March 16, 2005. Based upon her inspection, Ms. Kennedy documented 28 areas in which Harrison’s was in violation of the statutes and rules governing restaurant operations. One of the violations, No. 35A-01, was based upon Ms. Kennedy’s observation of ten dead roaches in Harrison’s dry storage area. She required Harrison’s to correct that violation within 24 hours. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on March 17, 2005, to determine whether the roaches had been cleaned up, which they had been. Ms. Kennedy gave Harrison’s 30 days to correct the remainder of the violations that she documented during her inspection on March 16, 2005. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on April 19, 2005, to determine whether the other violations had been corrected. During the inspection, Ms. Kennedy noted that some of the violations had been corrected, but that others had not been corrected. Five of the uncorrected violations were “critical” violations because, according to Ms. Kennedy, they posed an immediate threat to the public health. Three of the uncorrected violations were “non-critical” because, according to Ms. Kennedy, they posed a risk to the public health but not an immediate threat. The critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 45-17, 45-10, 45-30, 46-11, and 8A-04. Violation No. 45-17 was based upon Ms. Kennedy’s observation that the tag on the fire suppression system on the hood over the cooking area was out of date. The tag is supposed to be updated every six months, but the tag observed by Ms. Kennedy at Harrison’s was dated July 2003. Violation No. 45-10 was based upon Ms. Kennedy’s observation that the portable fire extinguishers were out of date. Fire extinguisher tags are supposed to be updated every year, but the tags on the extinguishers at Harrison’s reflected that two of them had not been inspected since December 2002 and another had not been inspected since July 2003. Violation No. 45-30 was based upon Ms. Kennedy’s observation that Harrison’s did not have the required inspection report for the fire suppression system for the hood over the cooking area. The purpose of requiring a current tag and inspection report on the hood fire suppression system and current tags on the portable fire extinguishers is to ensure that those devices are in good working order in the event of a fire. As a result, the out-of-date tags are considered to be critical violations. Violation No. 46-11 was based upon Ms. Kennedy’s observation that the emergency exit signs over Harrison’s side doors and the back door were not illuminated. This is a critical violation because the purpose of the illuminated signs is to guide restaurant patrons to an exit in the event of an emergency. Violation No. 8A-04 was based upon Ms. Kennedy’s observation of uncovered food in the walk-in cooler. This is a critical violation because uncovered food is subject to contamination. The non-critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 32-14, 22-02, and 23-01. Violation No. 32-14 was based upon Ms. Kennedy’s observation that there was no hand-washing soap at a sink in the kitchen. The absence of soap did not pose an immediate threat to the public health, but it is required so that employees involved in the preparation of food can wash their hands for their own hygiene and for the protection of the restaurant’s patrons. Violation No. 22-02 was based upon Ms. Kennedy’s observation of built-up of grease in the oven. Violation No. 23-01 was based on Ms. Kennedy's observation of built-up of grease on the sides of equipment in the cooking area. The built-up grease did not pose an immediate threat to the public safety, but cleanliness in the cooking area is important so as not to attract vermin and to prevent contamination of the food being cooked. Ms. Kennedy documented the violations described above on the Food Service Inspection Reports that she prepared at the time of her inspections. Copies of the reports were provided to Harrison’s at the end of each inspection, as reflected by the signature of Rafma Balla on each report. Mr. Balla is identified on the reports as Harrison’s manager/owner. The record does not reflect whether the violations described above have been corrected by Harrison’s since Ms. Kennedy’s last inspection on April 19, 2005. Harrison’s was provided due notice of the date, time, and location of the final hearing, but no appearance was made on its behalf at the hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order that: Imposes an administrative fine of $2,600 on Harrison’s for Violation Nos. 45-17, 45-10, 45-30, 46-11, 8A-04, and 32-14, payable on terms prescribed by the Division in the final order; and Requires Harrison’s to correct the critical violations related to the portable fire extinguishers, hood fire suppression system, and exit signs within 15 days of the date of the final order, and to provide proof thereof to the Division; and Requires Harrison's owner and/or manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2005.
