The Issue The issue presented for decision herein is whether or not the Respondent, J & M Seafoods, Inc., processed, sold and delivered food (seafood) where the net weight of the containers were less than that stated on the containers. If so, what, if any, disciplinary sanction should be imposed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. J & M Seafoods, Inc., Respondent herein, is a processor and packer of seafoods in Hialeah Gardens, Florida. On August 11, 1983, frozen lobster tails processed and packed by J & M Seafoods, Inc. were sold to Florida fish distributors in Jacksonville, Florida. Those lobster tails were inspected by a representative of the Petitioner, Robert Bailey, inspector. Inspector Bailey visited the warehouses of Florida fish distributors and inspected approximately 72 boxes of lobster tails which were labeled for ten pounds (160 ounces each) . Inspector Bailey weighed each ten pound box with ice glaze on the product. Inspector Bailey thawed the product and the net weight found for the individual boxes averaged 96 ounces or 64 ounces less than the claimed weight of 160 ounces. (Petitioner's Exhibit 1) Inspector Bailey thereafter resealed the boxes and placed a Stop Sale Order after the boxes were retaped with Petitioner's Stop Sale Order attached thereto. Inspector Bailey subsequently authorized the movement of the goods under the Stop Sale Order and the product was transferred back to the Respondent's warehouse in Hialeah Gardens, Florida. (Petitioner's Exhibit 3) Armando Esceto, an agriculture and produce specialist (food inspector) employed by Petitioner, inspected the Stop Sale product at the Respondent's warehouse in Hialeah Gardens. One of Respondent's agents, a Mr. Miranda, identified the boxes and advised that he sold the product to a processor in the Jacksonville area. (Petitioner's Exhibits 4 and 5) Inspector Esceto rechecked the Stop Sale product and noted that the actual weight was 94 ounces versus the claimed weight of 160 ounces. Sometime thereafter, Inspector Esceto again was summoned to the Respondent's warehouse to recheck the product and found that it fell within the allowable weight discrepancy. He therefore issued a release notice for the product to be sold. (Petitioner's Exhibits 9, 10, and 11) John Rychener, Petitioner's Bureau Chief for the Food Grades and Standards Division, was in charge of the overall investigation of the subject case by the Petitioner. Frozen lobster tails, on the average, sell for approximately $6.10 to $6.20 per pound. The product in question, as originally packed, processed and sold, contained approximately 40 percent ice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Florida Department of Agriculture and Consumer Services, impose an administrative fine of $1,500 on Respondent for violations as set forth herein above. RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 May, 1984. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32301 Michael I. Rose, Esquire Roberts Building Suite 303 and 330 28 W. Flagler Street Miami, Florida 33130 John Rychener Bureau Chief Food Grades and Standards Division Department of Agriculture Mayo Building Tallahassee, Florida 32301
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2 On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.) The two investigative visits followed the same pattern. Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage). The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
Conclusions This matter came before the Department for entry of a Final Order upon the Settlement Stipulation and submission of an Order Relinquishing Jurisdiction and Closing File by Lisa Shearer Nelson, an Administrative Law Judge of the Division of Administrative Hearings, copies of which are attached and incorporated by reference in this order. The Department hereby adopts the Settlement Stipulation and Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that the parties shall carry out the terms of the Settlement Stipulation. The Department acknowledges that on November 21, 2011, Respondent paid the civil fine of $250.00 to the Department. Filed December 5, 2011 2:36 PM Division of Administrative Hearings DONE AND ORDERED this ae day of December, 2011, in Tallahassee, Leon County, Florida. Michael D. McCaskill, Assistant Deputy Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 5 day of December, 2011. Vabiat D. rok Nalini Vinayak, Dealer License Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Ronald D. Edenfield Post Office Box 229 Grand Ridge, Florida 32442 James K. Fisher, Esquire Department of Highway Safety And Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Lisa Shearer Nelson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Dwight Davis, Section Manager Division of Motorist Services Wayne Jordan, Section Supervisor License Installer Program
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
The Issue Whether or not, the Petitioner, Zemour, Inc., t/a La Bonne Maison should be granted a license by the State of Florida, Division of Beverage, the license no. 23-2612-SRX series 4-COP.
Findings Of Fact The Petitioner, Zemour, Inc., through its owner Edgard Zemour, purchased the restaurant known as Left Guard Restaurant located at 7444 Biscayne Boulevard, Miami, Florida. After making the purchase the Petitioner made application to transfer the beverage license held by the Left Guard Restaurant, which license is no. 23-2612-SRX series 4-COP. In addition application was made to change the name of the restaurant from Left Guard Restaurant to La Bonne Maison. These applications to transfer the license and change the name were filed with the State of Florida, Division of Beverage. By letter of February 15, 1977, the Director of the Division of Beverage has denied the transfer and the change of name applications. The denial was premised upon the statement that the application corporate officer, Edgard Zemour was not believed to be of good moral character, as required by Section 561.15, F.S. In addressing the question of his moral character, the owner and President of Zemour, Inc., Edgard Zemour filed a personal data sheet with the State of Florida, Division of Beverage. This data sheet lists arrests and/or inquiries made by the French Government against Edgard Zemour. Edgard Zemour gave testimony in the subject hearing on the application for transfer and change of name of the licensed premises, which augmented the personal data sheet. In 1956, Edgard Zemour was charged by the French Authorities with car theft or using the car without the permission of the owner. At the time, Edgard Zemour was 18 years of age and he and a friend decided to go dancing and stole someone's car and went to a discotheque to dance. He was arrested and sent to jail for two weeks, followed by four months probation. During this same year, 1956, Edgard Zemour was arrested for assault and battery for a fight which he had with an American sailor in a bar in Brest, France. Edgard Zemour was fined approximately $25.00 for that incident. From 1953 thru 1963, Edgard Zemour was in the wine business as a salesman, until the French Police told him to not operate in such a capacity, and Edgard Zemour responded by ceasing his activities. In 1958, while in the wine business, as a salesman "door to door", Edgard Zemour was charged with wine fraud. This incident involved his company placing approximately 30 gallons of wine in a cask when a customer wanted 25 gallons, and the customer being charged for the full 30 gallons. Zemour was not convicted of this charge. In 1959 Zemour was charged with abuse of trust while operating the wine business, due to the late arrival of wine which had been purchased by customers. He was not convicted of this offense. In 1960, he was charged on two separate occasions for wine fraud, in that Zemour was allegedly responsible for the customer paying for 30 gallons of wine when in fact only 25 gallons had been ordered. Edgard Zemour was found not guilty on those two occasions. In 1960, Edgard Zemour was charged with indecent conduct with a female for an incident which occurred with a girl in an automobile. This case did not go to court. Edgard Zemour was released from the charge. (This incident relates to the no's 6 and 7 found in his personal data sheet answers.) In December 1961, Edgard Zemour was charged with possession of weapons, but was not responsible since this weapon belonged to his father who served in World War I. This charge had been placed by the French Authorities. During May 1967, Edgard Zemour was charged with fraud while operating in the textile business. The textile business would mean the clothing business. This charge was placed by the French Authorities and pertained to the activities of one of the salesmen working for a company in which Edgard Zemour was part owner. The salesman had lied about the type of materials used in the clothing and the clothing did not properly fit the customers to whom he had sold the clothing. Zemour, as owner of the corporation for whom the salesman worked, was charged with complicity which is apparently some form of conspiracy. Edgard Zemour had a trial on the issue and the judge found him guilty and placed him on two years probation. Zemour appealed the sentence and the appellate court upheld the conviction and sentenced Zemour to two years in prison. Edgard Zemour learned of the actual sentence before going back to court to face the sentence and fled France until 1972. When Edgard Zemour left France, he went to Israel. While in Israel, Edgard Zemour was in the restaurant business. On one occasion while Zemour was in the restaurant business, a homicide occurred in his restaurant and the Israeli police took him to jail and kept him there for 23 to 25 days, after which time he was released when the police found the actual assailant. On one other occasion while living in Israel Zemour tried to stop a fight in his restaurant and the police took him to the police station as a part of their investigation of the fighting incident, but subsequently released Zemour from charges. In 1973, Edgard Zemour's father became ill and Edgard Zemour left Israel by way of Frankfurt, Germany to return to France to see his father who was thought to be dying. Zemour took the passport of one of the employees in the restaurant in Israel, and had someone in Frankfurt, Germany place Zemour's picture on the French passport belonging to the restaurant employee. This was done to avoid detection by the French authorities who would arrest Zemour to serve the two year sentence for the fraud case in 1969. When Zemour arrived in France he was arrested for having a false identification and for showing the false identification passport to the French Authorities. He went to court and was given a one month sentence for having a false identification and a one month sentence for showing a false passport to the French Police, in addition to the two year sentence which was pending on the fraud case of 1969. Zemour served between 8 and 9 months on these cases and was placed on probation. Edgard was with his brother and uncle and some friends in a bar in France between 4:00 p.m. and 4:15 p.m., during the year 1975. At this time Zemour was on probation and did not wish the police to see him in the bar, although he felt his probation would allow him to be in that bar. A group of policemen entered the bar and shot and killed his brother and uncle and one friend. The police also shot Zemour five times. Zemour claims that this incident involved some political dispute in France. Zemour was charged with fighting with the police. Before standing such charge, he spent one year in the hospital most of which time was spent in the prison hospital. Zemour was acquitted of the offense of fighting with the police and left France. In March 1976, Edgard Zemour went to Brussels, Belgium for one week and from there to Martinque for two weeks and subsequently to Miami, Florida, in April of 1976, and has remained in Miami, Florida since that time.
Recommendation It is recommended that the application for transfer and change of name as filed by Zemour, Inc., t/a La Bonne Maison, concerning the license no. 23-2612- SRX, 4-COP, be denied. DONE AND ENTERED this 8th day of March, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Cy Chadroff, Esquire Charles F. Tunnicliff, Esquire Suite 2806 Division of Beverage 120 Biscayne Boulevard, North The Johns Building Miami, Florida 33132 725 Bronough Street Tallahassee, Florida 32304
Findings Of Fact 1. The evidential facts in this cause are presented by a joint stiulation between the parties. That stipulation is made a part of the record herein. The exhibits referenced as being attached to the stipulation are not actually attached, but are available for review in the Petitioner's file, by agreement of the parties. The following is a recitation of the stipulation.
Recommendation It is recommended that the license held by the Respondent, Manhattan Liquors, Inc., t/a Manhattan Liquors, license no. 39-1086, series 4-COP, be revoked. DONE AND ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Joseph G. Spicola, Jr., Esquire Spicola and Larkin, P.A. 806 Jackson Street Tampa, Florida 33602
The Issue Whether Respondent, Momma G’s, Inc. (“Momma G’s”), violated the Florida Civil Rights Act of 1992, sections 760.01 through and 509.092, Florida Statutes(2015),1/ by discriminating against Petitioner (“Scarlett Evans” or “Ms. Evans”) or by retaliating against her for participating in a protected activity.
Findings Of Fact Momma G’s is a sandwich-shop franchise consisting of franchisees and company-owned stores. Ms. Evans is a female who began working at a Momma G’s franchise located in Panama City, Florida (“the restaurant”), in October of 2013. Ms. Evans started as a cashier, and her good performance led to her being promoted to shift leader in May of 2014. A few months later, the franchise owners asked Ms. Evans to become the restaurant’s general manager because the current general manager was doing a poor job. While employed as the restaurant’s general manager, Ms. Evans typically worked Monday through Friday for 35 to 40 hours a week. Ms. Evans occasionally worked weekends in order to account for inventory, and she asserts that she had no problem with working weekends. In approximately December of 2014, the restaurant’s three owners notified Momma G’s corporate headquarters that the restaurant was struggling. The restaurant was six months behind on its rent, and the landlord was threatening eviction. In addition, the owners had accumulated over $300,000 in bank debt. Because closings damage a restaurant chain’s image, Momma G’s corporate headquarters negotiated a deal in which the franchisor acquired the restaurant and would operate it as a company-owned store. Accordingly, Momma G’s assumed control of the restaurant on May 1, 2015. Momma G’s did not fire any of the restaurant’s employees, but it did require all of them to re- apply for positions at the restaurant. Mike Davis is the vice president of Operations for Momma G’s. At the times relevant to the instant case, he oversaw 30 restaurants. Once Momma G’s corporate headquarters completed the negotiations to acquire the restaurant, Mr. Davis immediately drove to Panama City in order to oversee the transition. Mr. Davis contacted another Momma G’s employee (Sam Ferminella) and asked him to assist with the transition. Mr. Ferminella was a general manager who had proven to be proficient in turning around troubled stores. After the May 1, 2015, acquisition, Mr. Davis remained in Panama City for approximately three days to oversee the transition. Mr. Ferminella was more involved with improving the restaurant’s day-to-day operations, and he spent approximately to 11 days in Panama City during the first three weeks after the acquisition. At some point during the 10 to 11 days following the acquisition, Ms. Evans talked to Mr. Davis and/or Mr. Ferminella about continuing as the restaurant’s general manager. It is unclear what Ms. Evans was told, but there is no dispute that she was essentially in charge of the restaurant after Mr. Ferminella left Panama City following his initial 10-to- day visit. Rather than being a salaried employee, Ms. Evans was paid by the hour before and after the acquisition. On May 11, 2015, Ms. Evans learned that the restaurant’s general manager position was being advertised on- line. She texted Mr. Ferminella to inquire about the situation, and he promptly called her. Ms. Evans alleges that Mr. Ferminella told her during that conversation that Momma G’s cannot have a single mother working as a general manager because the restaurant needs someone who can work long hours, be available any day of the week, and respond on a moment’s notice if there is a problem at the restaurant. That conversation prompted Ms. Evans to file a complaint with the Equal Employment Opportunity Commission (“the EEOC”) on May 20, 2015. Momma G’s learned of Ms. Evans’ complaint on approximately May 25, 2015. On May 26, 2015, Sandy Gnad (who was responsible for Human Resources at Momma G’s) contacted Ms. Evans via telephone and e-mail. Ms. Gnad wanted to know if there was something she could do to help. Mr. Davis learned of the complaint at some point in June of 2015. After Momma G’s learned of her complaint, Sam Moore began working as the restaurant’s general manager, and Ms. Evans claims that her work hours were reduced. According to Ms. Evans, she typically worked 35 to 40 hours a week. However, her hours were allegedly reduced to 20 to 30 a week in late May. In addition, there were occasions when she would be released after two to two and one-half hours of work when she had been scheduled to work six hours. Ms. Evans was the restaurant’s highest paid hourly worker. Ms. Evans alleges that the restaurant was having trouble keeping up with demand at some point that summer. According to Ms. Evans, Mr. Davis dealt with the problem by increasing Ms. Evans’ hours and splitting the general manager duties between Ms. Evans and Mr. Moore. At that point, Ms. Evans asserts that the only difference between her and Mr. Moore was that he was a salaried employee, while Ms. Evans was still paid by the hour. Mr. Moore resigned from the restaurant at the end of June, and Ms. Evans had been acting as a de facto general manager. Ms. Evans filed a complaint of discrimination with the FCHR on July 8, 2015, alleging that she was not hired for the restaurant’s general manager position because she is a single mother. On August 7, 2015, Ms. Evans and a co-worker named Sierra Kennedy were at the restaurant prior to 10:00 a.m. and were preparing to open the store at 10:30 a.m. Mr. Davis had made an appointment to interview Stefanie Flaugher at the restaurant for the vacant general manager position, and Ms. Flaugher arrived at approximately 9:45 a.m. on August 7, 2015, for her 10:00 a.m. interview. However, Mr. Davis had not arrived, and Ms. Flaugher was standing outside the restaurant waiting for him. Ms. Evans had to make a bank deposit, and she encountered Ms. Flaugher on her way out of the restaurant. Ms. Flaugher told Ms. Evans that she was there to interview with Mr. Davis for the general manager position. Ms. Evans expressed frustration and told Ms. Flaugher that the general manager position was her job, and proceeded to the bank. When Ms. Evans returned to the restaurant, Mr. Davis was interviewing Ms. Flaugher in a booth. At some point during the interview or soon thereafter, Mr. Davis approached Ms. Kennedy and said something to the effect that, “So Scarlett quit.” When Ms. Kennedy reported that Ms. Evans had not resigned, Mr. Davis turned back to the booth where Ms. Flaugher was still sitting and stated, “No, she did not quit.” According to Ms. Kennedy, Mr. Davis appeared to be excited when he thought that Ms. Evans had resigned. However, his excitement reportedly turned to disappointment after Ms. Kennedy corrected him. Mr. Davis remained at the restaurant for approximately two hours after the interview concluded. During that time, he worked on his laptop, walked around the store, and did paperwork. He never seemed excited or upset. Mr. Davis said nothing of any significance to Ms. Evans. On August 11, 2015, Ms. Evans received a message that Ms. Gnad wanted to speak with her. After she and Ms. Kennedy finished serving the restaurant’s lunchtime customers, Ms. Evans returned Ms. Gnad’s call. Upon reaching Ms. Gnad, Ms. Evans learned that the call was being recorded and that Mr. Davis was joining the call. Upon joining the call, Mr. Davis stated that Ms. Flaugher had reported to him that Ms. Evans had used the “f- word” when they conversed outside the restaurant on August 7, 2015. Mr. Davis had hired Ms. Flaugher to be the restaurant’s general manager, and he wanted Ms. Evans to sign a letter stating that she would respect Ms. Flaugher’s authority. In addition, the letter noted that Ms. Evans had “rudely spoke[n] to a manager candidate who was waiting outside for an interview, addressing her disrespectfully and using the ‘f’ word multiple times.” Mr. Davis told Ms. Evans that she could either sign the letter or resign. Ms. Evans vehemently denied using any profanity during her conversation with Ms. Flaugher. Prior to this phone conversation, Ms. Evans had not been given a copy of the letter Mr. Davis wanted her to sign. When Ms. Evans refused to sign the letter after hearing a description of its contents, Mr. Davis fired her. Ms. Kennedy resigned that day. Testimony Adduced at the Final Hearing Ms. Evans testified that Mr. Ferminella told her in May of 2015 that Momma G’s could not have a single mother as a general manager because the position essentially requires one to be available at all times. Mr. Ferminella testified that Momma G’s has hired single mothers to fill general manager positions, and he denied ever telling Ms. Evans that she was ineligible for the general manager position. He testified that Ms. Evans had been hired as a “supervisor” in May of 2015 and that he never told anyone to reduce Ms. Evans’ hours. Mr. Ferminella testified that the highest paid hourly worker in a restaurant is typically released early on days when business is slow. Mr. Davis testified that he had agreed to hire Ms. Evans as an hourly supervisor. Her responsibilities included management of the restaurant’s daily operations, managing other employees, and purchasing. Mr. Davis denied telling anyone to reduce Ms. Evans’ hours. He also testified that the restaurant industry has a practice of releasing the highest paid hourly worker early when business is slow on a particular day. That helps keep costs down. Mr. Davis testified that Momma G’s has hired single mothers to fill general manager positions in the past. Mr. Davis testified that Ms. Flaugher told him during her interview about her conversation with Ms. Evans. According to Mr. Davis, Ms. Flaugher told him that Ms. Evans had used the “f-word” during that conversation. Mr. Davis testified that use of the “f-word” by a Momma G’s employee results in immediate termination. Nevertheless, Mr. Davis did not take immediate action. Instead, he testified that he had to “listen and investigate and take time, and then report to my direct report2/ the conversation. And, you know, that’s the way things work. Things were very – move very slowly in this business, making decisions.” Mr. Davis also testified that he hired Ms. Flaugher to be the general manager of the restaurant in Panama City. According to Mr. Davis, Ms. Flaugher accepted the offer and reported for training at a Momma G’s restaurant in Auburn, Alabama. Momma G’s even reserved a hotel room for her while she was training in Auburn. However, Ms. Flaugher supposedly left the week-long training after a few days without giving notice of any kind to Mr. Davis or anyone else associated with Momma G’s. During the final hearing, Mr. Davis attributed Ms. Flaugher’s sudden and unexplained disappearance to her being “traumatized” by her conversation with Ms. Evans on August 7, 2015. As noted above, Ms. Gnad performed human relations work for Momma G’s, and she testified that Mr. Davis “has complete authority to hire or fire whoever he wants” at a Momma G’s owned store without needing anyone else’s approval. However, her statement only applied to certain Momma G’s stores, and it is unclear whether Mr. Davis had such authority at the Panama City restaurant. Ultimate Findings of Fact Ms. Evans failed to establish that Momma G’s discriminated against her when she was not hired for the general manager’s position. Ms. Evans also failed to prove that Momma G’s retaliated against her by reducing her hours during the summer of 2015. However, Ms. Evans did prove that Momma G’s effort to discipline her, and ultimately terminate her, based on the conversation with Ms. Flaugher, was retaliation for filing complaints with the EEOC and the FCHR. The testimony of Ms. Evans and Ms. Kennedy was far more credible than Mr. Davis’s. In particular, the undersigned credits Ms. Kennedy’s testimony that Mr. Davis approached her and excitedly said something to the effect that, “So Scarlett quit.” After Ms. Kennedy corrected him, Mr. Davis appeared to be disappointed, turned back to the booth where Ms. Flaugher was still sitting, and stated, “No, she did not quit.” That testimony indicates Mr. Davis was hoping that Ms. Evans’ employment at the restaurant would come to an end. During his testimony, Mr. Davis was adamant that a Momma G’s employee would be immediately terminated for using profanity. However, when he supposedly learned from Ms. Flaugher on August 7, 2015, that Ms. Evans had used the “f-word,” he took no action whatsoever despite being at the restaurant with Ms. Evans and Ms. Kennedy for approximately two hours after the interview had concluded. His lack of prompt action belies Mr. Davis’s assertion that he needed to conduct an investigation. Any such investigation would have included a prompt discussion with the accused (i.e., Ms. Evans). In addition, Mr. Davis simply accepted a statement made by a complete stranger without conferring with an employee who was regularly in charge of the restaurant. In short, there was no true investigation and no intent to conduct one. The undersigned also has a difficult time reconciling Mr. Davis’s assertion that Ms. Flaugher was “traumatized” by her encounter with Ms. Evans when Ms. Flaugher: (a) agreed to be the general manager at the restaurant; (b) traveled to Auburn, Alabama, for one week of training; and (c) attended a few days of that training prior to leaving with no explanation. If Ms. Flaugher was so traumatized, it seems very unlikely that she would have accepted Mr. Davis’s job offer. It is even more unlikely that one so traumatized would travel from her home for a week-long training session and suddenly realize after a few days of training that she could not accept the general manager position. By attributing Ms. Flaugher’s unexplained disappearance to being traumatized by her conversation with Ms. Evans, Mr. Davis demonstrates a pretextual basis for his desire to have Ms. Evans’ employment at the restaurant end. Finally, Mr. Davis’s credibility was also undermined by his demeanor on the witness stand. He appeared to be very nervous or uncomfortable when cross-examined by Ms. Evans’ attorney, and he appeared even more nervous or uncomfortable when the undersigned questioned him about certain aspects of his testimony. In sum, Mr. Davis’s failure to obtain Ms. Evans’ version of what happened outside the restaurant on August 7, 2015, demonstrates that the effort to discipline her on August 11, 2015, was a pretext for retaliating against her for filing complaints with the EEOC and the FCHR. In other words, Mr. Davis had no interest in conducting an actual investigation and giving Ms. Evans an opportunity to rebut Ms. Flaugher’s assertion. Rather than being motivated by a desire to ascertain what actually happened outside the restaurant on August 7, 2015, Mr. Davis was motivated by a desire to take some sort of adverse action against Ms. Evans. There is no other reasonable conclusion because all of the evidence indicates that Ms. Evans was a good employee. Mr. Ferminella testified that Ms. Evans would have been considered for the general manager position if she had been willing to work the required hours and be a salaried employee. Also, even after Momma G’s acquired the restaurant, Ms. Evans continued in a leadership role, even though she was never officially designated as the restaurant’s general manager. The evidence and testimony presented at the final hearing demonstrates that there was a causal connection between the filing of Ms. Evans’ complaints and the adverse employment action at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order awarding Scarlett Evans back pay, a reasonable attorney’s fee, and any other relief she is entitled to under section 760.11, Florida Statutes. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of May, 2016.
The Issue Has Petitioner been the subject of an unlawful employment practice because of his race, American Indian, and if so, what relief is appropriate?
Findings Of Fact Upon consideration of the oral evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, Respondent operated a citrus processing facility in Bartow, Florida, and employed in excess 15 employees. Petitioner is a full-blooded American Indian who resides in Lakeland, Polk County, Florida. Bobby Branch, Respondent’s Maintenance Supervisor, hired Petitioner as a Maintenance Mechanic. Petitioner commenced employment with Respondent on August 18, 1997. Petitioner was employed at an hourly rate of $10.50. Petitioner was assigned by Bobby Branch to work under the direct supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner had 37 plus years' experience as a mechanic and 15 years' experience with the citrus industry as a mechanic. Petitioner understood at the time he was hired that he would be on probation for a period of 90 days. Shortly after Petitioner began work, Garry Guard told Petitioner “I don’t want to work with an Indian” and “I’m prejudiced and I don’t give a damn who knows it” or words to that effect. Additionally, Guard let it be known that he would prefer working with a Mexican. Approximately one week after this incident, Petitioner complained to Bobby Branch, Maintenance Supervisor, about Guard’s comment to Petitioner. This is supported by the testimony of Charles Palmer, a former employee of Respondent, that he was aware that Petitioner reported Guard's comment to Bobby Branch. There was no remedial action taken by either Branch or any other management personnel concerning Guard’s comment to Petitioner. Subsequently, Petitioner noticed his work being undone and Guard complaining that Petitioner’s work was not done or that his work was done improperly. Petitioner and William Waples, a former employee of Respondent, worked together on one of those projects, rebuilding and installing a pump. Waples considered Petitioner a good mechanic. Later, after Waples and Petitioner were finished with the pump, Guard was observed taking the pump apart. Subsequently, Guard complained that Petitioner failed to install a specific part in the pump. Waples specifically recalls that particular part being installed by himself and Petitioner. Subsequent to that event, Guard, when questioned by another worker about the pump and the problem with it, was over heard by Waples saying words to the effect that the “Damn Indian did it.” On October 22, 1997, Petitioner filed a complaint with Branch that Guard was purposefully sabotaging his work because of his race. Again, there was no remedial action taken by Branch or any other management personnel. Branch neither personally observed deficient work performance by Petitioner nor personally communicated to Petitioner the need for Petitioner to improve his performance if he were to successfully complete his probationary period with Respondent, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was never reprimanded or counseled prior to being terminated. Petitioner was not terminated because of his deficient work performance during his probationary period, but was terminated because of his complaints to Bobby Branch of being discriminated against due to his race, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was terminated by Respondent on November 14, 1997. Petitioner claims lost wages at an hourly rate of $10.50 for 40 hours per week for the period from November 15, 1997 to April 24, 1998. There does not appear to be any evidence of a set-off against the claim for lost wages. Although Petitioner was represented by an attorney, there was no evidence presented as to the amount of Petitioner's attorney's fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition for Relief be granted, and as further relief, award Petitioner back wages for the period of November 15, 1997 until April 24, 1998, based on a 40 hour week at an hourly rate of $10.50, and upon motion to the Commission, award reasonable attorney's, in accordance with Section 760.11(7), Florida Statutes. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001. COPIES FURNISHED: Merette L. Oweis, Esquire DiCeasure, Davidson & Barker, P.A. Post Office Box 7160 Lakeland, Florida 33897 David J. Stefany, Esquire Allen, Norton & Blue, P.A. South Hyde Park Avenue Suite 350 Tampa, Florida 33606 Dana A. Baird, General Counsel Florida Commission on Human Relations John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Rd, Bldg. F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
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 Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
