The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983) At all times pertinent to this proceeding, Respondent Gopherbroke was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 4528 by the Department, and bonded by Hartford Insurance Company of the Southeast (Hartford) in the sum of $25,000. At all times pertinent to this proceeding, Respondent Hartford was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1) Florida Statutes (1983). Prior to April 1, 1985, Petitioner and Robert Neill, President of Gopherbroke, verbally agreed for Respondent Gopherbroke to act as agent in the sale of certain zucchini squash produced by Petitioner in 1985 on a net return basis, i.e. Petitioner to receive the gross sale price of the squash minus a handling fee of $0.50 per carton and a sales commission of 1/ 6.5 per cent of the gross sales price. Between April 1, 1985 and April 12, 1985 Petitioner through Tommy York delivered to Respondent Gopherbroke 84, 107 and 19 cartons of small, medium and large zucchini squash respectively for a total of 210 cartons represented by receipt tickets numbers 276-282 issued by Respondent Gopherbroke. Petitioner and Tommy York (York) had an agreement whereby York would harvest, clean, grade, package and deliver the zucchini squash produced by Petitioner to Respondent Gopherbroke for a percentage of the net proceeds derived from the sale of the squash. Respondent Gopherbroke was not a party to the agreement between Petitioner and York and was not authorized to withhold any money derived from the sale of Petitioner's squash to be paid to York under York's agreement with Petitioner. The net return on the 210 cartons of zucchini squash referred to in paragraph 6 above was $698.17 of which Petitioner has received only $349.09, the balance of $349.08 was paid to York by Respondent Gopherbroke. After April 12, 1985 York was no longer involved in the harvesting of Petitioner's squash due to a disagreement between York and Petitioner. On April 15 and 17, 1985 Petitioner delivered 30, 62 and 3 cartons of small, medium and large zucchini squash, respectively to Respondent Gopherbroke. The net return on the 95 cartons of zucchini squash referred to in paragraph 10 above was $127.35 which has been paid to Petitioner in two separate checks. However, Petitioner was not paid for 5 cartons of medium zucchini squash that Respondent Gopherbroke shows on its exhibit 2 (4/19 - 8731) as being dumped and on 21 cartons of medium zucchini squash Respondent Gopherbroke shows on its exhibit 2 (4/17 - 87298) as open but later shows a gross sale of $47.25 with charges of $10.50 for handling and $3.07 commission and an adjustment of $43.29 for a minus net proceeds to Petitioner of $9.61. The evidence is clear that the zucchini squash delivered to Respondent Gopherbroke by Petitioner on April 15 and 17, 1985 were harvested, cleaned, graded and packaged by Petitioner and his family and were of good quality when delivered. Respondent Gopherbroke presented no testimony or documentary evidence to support the dumping of the 5 cartons of squash or any justification for the adjustment on the 21 cartons of squash. On at least one occasion, Petitioner advised Respondent Gopherbroke that it was not authorized to pay York any of moneys owed to Petitioner by Respondent Gopherbroke for zucchini squash delivered by York. The price of medium zucchini squash during the period that the 5 cartons were dumped was $2.00 per carton for a gross amount of $10.00 minus the handling fee of $2.50 for a net return of $7.50. A sales commission of $0.65 had been deducted in Respondent Gopherbroke's earlier calculation. Petitioner was not furnished an account of sales within 48 hours after Respondent Gopherbroke sold the squash and the earliest payment for the squash was made 9 days after Respondent Gopherbroke had collected for Petitioner's squash.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Gopherbroke be ordered to pay to the Petitioner the sum of $399.87. It is further RECOMMENDED that if Respondent Gopherbroke fails to timely pay the Petitioner as ordered, then Respondent Hartford be ordered to pay the Department as required by Section 604.21, Florida Statutes 1983 and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 8th day of April, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 day of April, 1986.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8). There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8). Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent. RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively) Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31. Proposed finding of fact 16 and 17 are more argument than Findings of Fact. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law. Respondent's Proposed Findings of Fact. Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: Joseph M. Helton, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald F. Kilbride, pro se 5681 Westwind Lane Sarasota, Florida 34231 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Tabor, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
The Issue The two issues to be determined are whether: (1) a violation of section 556.107(1)(a), Florida Statutes, relating to a "high-priority subsurface installation" proximately caused an "incident" under section 556.116(1)(c); and (2) if so, what fine should be imposed against the violator in an amount not to exceed $50,000.
Findings Of Fact Based on the stipulated facts and the evidence adduced at the final hearing, the following findings of fact are made. Stipulated Facts (Paragraphs 1 through 24) Sunshine 811 and the Incident Sunshine 811 is the free-access notification system established by the Underground Facility Damage Prevention and Safety Act (Act). See §§ 556.101-556.116, Fla. Stat. Section 556.105(1)(a) requires an excavator, before beginning any excavation or demolition, to provide Sunshine 811 with certain information that will allow a utility company to mark on the surface of the earth the horizontal route of underground facilities in the area of the proposed excavation. An excavator must notify Sunshine 811 of an upcoming excavation not less than two full business days before beginning an excavation. Such notification and resulting locate ticket remain valid for only 30 days after the notice to Sunshine 811. See § 556.105(1)(a), (c), Fla. Stat. Cougar is a site-work contractor. Cougar had a subcontract with general contractor Waltbillig & Hood, who was building a storage facility on property at or around 16641 South Tamiami Trail in Fort Myers. Among other site work, Cougar agreed to install underground storm structures. On Saturday, May 18, 2019, around 10:20 a.m., an employee and agent of Cougar, Ramiro Garcia, was operating a backhoe excavator on or near the property located at or around 16641 South Tamiami Trail in Fort Myers. While digging to install a storm structure, the excavator ruptured an eight- inch steel underground gas distribution main owned and operated by Peoples Gas. More than three months before the incident, on February 12, 2019, Cougar, through Jessica Armstrong, notified Sunshine 811 about an excavation to occur at 16721 South Tamiami Trail. Cougar requested utility locating for the "perimeter of new storage facility." In response, Sunshine 811 generated locate ticket number 043902987. Two days later, on February 14, 2019, Cougar, through Ms. Armstrong contacted Sunshine 811 to replace the previous locate ticket number 043902987. This time Cougar requested locating at a different address, 16641 South Tamiami Trail, but again requested utility locating for the "perimeter of new storage facility." In response, Sunshine 811 generated a new locate ticket number 045903523, which expressly "replace[d] Ticket #043902987," as Cougar requested. On February 14, 2019, Peoples Gas locator, Todd Gerloski, responded at 3:10:06 p.m. to the second locate ticket number 045903523, by entering "High Priority Pipeline - Marked," which confirmed that Peoples Gas had located and marked a high priority pipeline within the excavation area. The parties agree the three locate tickets with dates of February 12, 2019, locate ticket number 043902987; February 14, 2019, locate ticket number 045903523; and May 18, 2019, locate ticket number 138900287, speak for themselves. Whenever, like here, an excavation site conflicts with a high-priority gas main, Peoples Gas issues and sends to the excavator an e-mail notice with the subject line "ATTENTION: High Priority Natural Gas Pipeline in Your Work Area-PLEASE READ." The notice provides the number of the locate ticket and warns among other things: "In reference to your locate request(s), there is a high profile gas line in the area. Excavation around this line requires increased caution to prevent significant bodily injury and/or property loss." The notice also provides the locater's contact information and states: "This line has been marked; please call the [contact] below one (1) working day in advance of excavation so Peoples Gas can make arrangements to be on site if necessary. Note: the law requires the excavator to spot dig the facilities." Finally, the notice advises that "information provided by an excavator is valid for 30 calendar days." Peoples Gas's Timothy A. Easter sent this notice to Cougar's Ms. Armstrong via e-mail on February 15, 2019, at 11:02 a.m. Thus, through Mr. Gerloski and Mr. Easter, Peoples Gas identified the gas main as high priority and notified Cougar about the presence of the high-priority main. According to section 556.105(1)(c), locate ticket number 045903523, which replaced the original locate ticket number 043902987, expired on March 17, 2019. Accordingly, when the incident occurred on May 18, 2019, Cougar was digging without a valid locate ticket, in violation of the Act. Cougar's and Peoples Gas's Response to the Incident and the Incident's Impact on the Community Immediately after rupturing the gas main, Cougar's Ramiro Garcia turned off the excavator and ordered everyone to move away from the area of damage. Mr. Garcia then called 911 and his supervisor. Traffic along this section of U.S. 41 (Tamiami Trail) was shut down in both directions shortly after the 911 call, but no later than 11:15 a.m. Around the same time, the area and businesses around the damage were evacuated. After receiving a report of the incident from the fire department, Peoples Gas's first responder arrived on scene at 11:06 a.m. and confirmed that the damage was to the eight-inch high-priority steel gas main, a one-way feed that serves 15,176 customers to the south and along Fort Myers Beach. To avoid losing gas service to 15,176 customers, restoration of which would require at least one visit by a Peoples Gas representative to each customer, Peoples Gas endeavored to safely keep the gas main in service while conducting the repair. In order to do so, Peoples Gas relied on the assistance of several contractors, employees, and public first responders, and delivered trucks of compressed natural gas to maintain the necessary operating pressure of the gas main downstream, while Peoples Gas conducted the repair on the section of damaged pipe. Around 2:15 p.m., the southbound lane of U.S. 41 was reopened. The southbound lane was closed for approximately three and one-half hours. The northbound lane remained closed. Around 6:00 p.m., Peoples Gas incident commander, Greg Crawford, received a phone call from Cougar's Shane Meaker. Mr. Meaker called to offer help by offering a large track hoe to help dig around the main and assist the repair. Peoples Gas accepted the offer, and a Peoples Gas contractor operated the Cougar track hoe to assist the repair. Peoples Gas successfully and safely kept the gas main in service while conducting the repair. However, gas service was lost to 17 customers, which required Peoples Gas to restore service to those customers after completing the repair. The repair effort extended overnight; Peoples Gas completed the repair, and the site was "made safe" at approximately 4:00 a.m. the next day, May 19, 2019. In total, the effort to repair the damage lasted approximately 17 hours. At 4:06 a.m., on Sunday, May 19, 2019, Peoples Gas notified the sheriff's department that the scene was safe, and shortly thereafter, northbound U.S. 41 was again open to traffic. The northbound lane was closed for approximately 17 hours. The Cost of Repair Peoples Gas awaits an invoice from one of its contractors, but the preliminary cost to repair the main and restore service to the 17 customers was $156,745.83.1/ This number comprises 53,930 therms of lost gas ($53,658), material cost ($938), equipment cost ($9,924), overtime labor ($3,200), double-time labor ($15,258), lodging and meal expenses ($453), contractor charges ($65,018), and administrative charges ($8,298). Cougar's Recent History of Violations On January 7, 2019, Cougar ruptured a four-inch underground gas main near Tiburon Way and Tidewater Key Boulevard in Estero. Although Cougar had called Sunshine 811 for a locate request on October 16, 2018, for the nearby area, the locate ticket number 289810669 had expired when the incident occurred. Peoples Gas suffered $2,571.84 in damages, and Cougar paid the claim in full. Causation If Sunshine 811 had been notified, Peoples Gas would have identified the location of the underground main with locate marks and would have sent Cougar the standard high-priority e-mail notice referenced above. Mr. Meaker confirmed that Cougar's equipment operators are well trained and recognize locate marks. Had Cougar called Sunshine 811 before commencing excavation on Saturday, May 18, 2019, the operator would have seen the locate marks and may not have struck the gas main. The record evidence contains a May 18, 2019, locate ticket number 138900287, which reflects that it was requested at 11:54 a.m. on Saturday, May 18, 2019, almost two hours after the incident occurred. Thus, Cougar was excavating without a valid locate ticket at the time of the incident described above. Cougar's failure to notify Sunshine 811 prior to commencing work on Saturday, May 18, 2019, is the proximate cause of the incident described above.
Findings Of Fact On July 2nd, 1974, Closet Maid Corporation (CMC) acquired Beechcraft model BCO from Elliott Flying Service under an agreement which was not introduced into evidence at this hearing. Respondent contends that this is a lease agreement with option to purchase at the expiration of sixty (60) months. Exhibit 3 is a transfer of CMC's interest in this aircraft to NOS Corporation. The Notice of Proposed Assessment (Exhibit 1) claims a tax due of $9,633.70, penalties of $481.69, and interest of $1,011.54 or a total tax due of $11,126.93. The accuracy of this sum was not contested. CMC is a corporation the majority of whose stock is owned by Norman Sauer. NOS Corporation was formed to be the transferee of CMC's interest in the airplane and the stock of NOS is wholly owned by Sauer. CMC and Nodorana Farms, another corporation wholly owned by Sauer, entered into agreements with NOS to lease back the aircraft at a guaranteed minimum monthly rental in excess of $8,000.00, which will provide NOS with sufficient revenues to make the monthly payments on the aircraft of $4,214.89 plus operating expenses. Elliott Flying Service is the registered owner of the aircraft. The only documentary evidence presented regarding the agreement between CMC and Elliott Flying Service is Exhibit 3. Exhibit 3 is a Beech Acceptance Corporation, Inc. (BAC) Transfer of Interest Agreement form which states that the "note, conditional sale contract, lease, chattel mortgage, or other security agreement, herein called 'Instrument'", representing the agreement between CMC and Elliott, requires the consent of BAC for its transfer to NOS. At the date shown on Exhibit 3 of August 1st, 1976, Exhibit 3 recites the balance due on the aircraft of $240,842.39 "is payable in forty-seven (47) consecutive monthly installments of $4,214.89 each, first installment payable August 2nd, 1976, and one final installment of $42,742.56." Exhibit 3 further shows BAC to be the assignee of the "instrument" executed between CMC and Elliott. Exhibit 2C is headed NOS CORPORATION and shows monthly aircraft expenses. Included therein is depreciation of $2480.00 and interest expense of $2192.00. Accounting procedures prescribed by AICPA provide that equipment held on long term lease be capitalized. Accordingly, essentially the same accounting procedures would be used whether the aircraft was obtained on lease or conditional sales contract.
The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
The Issue The issue for determination is whether Respondents owe Petitioner approximately $591 for a quantity of watermelons provided by Petitioner; secondarily, resolution of this issue 1 Correction of obvious error has been made to the style of this case, adding the name of Co-Respondent U.S. Fidelity and Guaranty Co., and eliminating the Department of Agriculture and Consumer requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Petitioner also has trucks in which he hauls agricultural products, including watermelons. When all his trucks are in use, he frequently calls a friend, Freddy Bell, to provide some of Bell’s trucks to haul his products. Petitioner, in turn, helps Bell when Bell’s trucks are all in use. Respondent Wilson is a dealer of such products in the course of normal business activity. Respondent Wilson acts as a broker in these arrangements, receives the gross sales receipts from buyers and from that sum deducts costs of labor, freight, inspections, any other associated costs and his commission. The net balance of the gross sales receipts are paid to the melon producers. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent pursuant to Section 604.20, Florida Statutes. Petitioner had not discussed any arrangement for the sale of his melons with Respondent Wilson. Instead, Petitioner discussed the sales price of his melons with Freddy Bell. Petitioner testified that Bell represented to Petitioner that he could get a price of $4.00 per hundred weight for Petitioner’s melons. Petitioner relied on Bell to provide transport his melons and obtain the promised price. While Bell did not testify at the final hearing, the parties are in agreement that Bell arranged for sale and shipment of Petitioner’s melons through Wilson. Wilson’s President, Robert M. Wilson, testified at hearing that Bell was not empowered by him to represent a guaranteed price for melons to anyone and that he could not affirm that Bell operated as his agent. He added that Melons were plentiful this past season and no melons were brokered on a guaranteed price basis. Testimony of Robert M. Wilson at the final hearing establishes that the arrangement between Respondent Wilson and Freddy Bell on Petitioner’s behalf was a brokerage arrangement and that the sale of the melons was subject to conditions and demands of the market place, i.e., that the melons would sell for the best possible price which Wilson could obtain for them. Testimony of Petitioner is uncorroborated and fails to establish that the agreement between the parties contemplated a direct sale of the melons to Respondent Wilson or a guaranteed price by Wilson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing Petitioner's complaint.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 John M. Martirano, Esquire US Fidelity and Guaranty Co Post Office Box 1138 Baltimore, MD 21203-1138 Robert M. Wilson, President Wilson and Son Sales, Inc. 2811 Airport Road Plant City, FL 33567 Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol - Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes? In particular, did Respondent knowingly maintain a sexually-hostile and abusive environment for its female servers which unreasonably interfered with their work, exposing the female employees to disadvantageous working conditions to which male employees were not exposed? Was the work place for female servers permeated with discriminatory ridicule and insults? Did Respondent maintain an intimidating environment which caused Petitioner's constructive discharge? Is Petitioner entitled to take up her former duties as a server at Respondent's restaurant? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Respondent owns four (4) restaurants. Two are located in Tallahassee, Florida. One is located in Mary Esther, Florida; and one is located in Pensacola, Florida. The Tallahassee restaurants are located on North Monroe Street and Apalachee Parkway. It is the Apalachee Parkway restaurant that is the subject of this case. At times relevant to the inquiry, the Parkway restaurant operated with an average staff of 16-18 servers, who are mostly female, and 9-10 cooks, who are males. The Parkway restaurant had a high volume of business during the period under inquiry. At peak volume, the employees felt under pressure and were not especially respectful of fellow employees. Petitioner was employed at the Parkway restaurant from February 12 through May 15, 1993. Petitioner is approximately 30 years old. Petitioner is a female, whose stature is one of average height and weight. Petitioner was hired by a manager at the Parkway restaurant. That manager was Erin Stowell. Respondent empowered Mr. Stowell to hire and fire employees at the Parkway restaurant and to impose the necessary controls to conduct business at the restaurant. Mr. Stowell had the supervisory authority to conduct the everyday business at the Parkway restaurant in the capacity of supervisor of servers and cooks. At times relevant to the inquiry, Petitioner worked the day shift. Mr. Stowell was her manager. On that shift, most servers were female. In Petitioner's latter tenure, there was one male server working the day shift. At times relevant, a manual detailing appropriate employee conduct was in place. Among the expectations for employees was that the employees not engage in profane and vulgar language. Moreover, employees were expected to engage in moral and proper behavior. Petitioner was given the employee manual. In the restaurant operation, servers were expected to fill out customer food order tickets that accurately described the food orders. This accuracy was vital to the restaurant's financial operation. All food items served were to be charged for. The cooks had a corresponding responsibility to make certain that the tickets were accurate and that they not prepare food that was not described on the food order ticket. These arrangements led to conflicts between the servers and the cooks concerning food preparation and its timely delivery to the customer. Christopher Titze is the son of Michael Titze. Michael Titze owns Respondent. Beth Titze is Michael Titze's wife and mother of Christopher Titze. Christopher Titze worked at the Parkway restaurant at times relevant to the inquiry. He served as a host who greeted customers. In the event that problems occurred between servers and cooks that affected service to the customer, Christopher Titze would mediate disputes between servers and customers. In addition, if there were other problems between cooks and servers, the server would seek Christopher Titze's intervention or the cook might seek Christopher Titze's intervention as mediator. This mediation function took place once or twice a day at most. Specifically, cooks would ask for assistance if the servers were not charging for food and when servers did not properly space the time for delivering food order tickets to the cooks. Servers would complain when cooks were not getting the food prepared fast enough. Christopher Titze observed that Petitioner often did not wear the proper uniform for a server. She wore shoes that were other than required and did not wear pantyhose as required. As host, Christopher Titze was expected to inform Petitioner that she was not wearing the appropriate uniform. He did inform her. These reminders were given to Petitioner on 15-20 occasions. Christopher Titze did not have the authority to discipline Petitioner for noncompliance with the uniform requirements. Christopher Titze would occasionally remind other servers that they were not in proper uniform from time to time. By contrast, Petitioner was chronically out of uniform. Christopher Titze was working at the restaurant on the Petitioner's last day of employment. He overheard Petitioner yelling. He observed that several customers in the lobby area to the restaurant were looking at him during the outburst. Christopher Titze felt embarrassment and went running to the area where Petitioner was located. When he arrived at that area, Petitioner and a cook named O.C. Mack were there. Mr. Mack was a 250-pound man. Christopher Titze observed that Petitioner was "carrying on". Mr. Mack appeared upset and seemed not to be paying attention to Petitioner. Petitioner was getting more upset with Mr. Mack and was yelling and screaming and cursing at him. At that time, the manager, Mr. Stowell was not in attendance in the area where Petitioner and Mr. Mack were engaged. In particular, Christopher Titze heard Petitioner say to Mr. Mack: "This is fucking bullshit and I don't have to put up with this shit from you or anyone else". Christopher Titze tried to ascertain what had caused the outburst. It took a couple of minutes for Petitioner to calm down and quit yelling. During this time, Mr. Mack was cooking. Mr. Mack explained that Petitioner had not charged a customer for hollandaise sauce. Petitioner told Christopher Titze that the problem had to do with hollandaise sauce for a customer. Christopher Titze told Mr. Mack that he needed the hollandaise sauce right now. Mr. Mack told Christopher Titze that he was not going to get it. Christopher Titze then went up front and asked Mr. Stowell to go back and take care of the problem. Before Christopher Titze went up front to get Mr. Stowell, Mr. Mack told Christopher Titze that he was not going to give the hollandaise sauce to him until it was charged for on the ticket. When Christopher Titze found Mr. Stowell he told Mr. Stowell that Petitioner and Mr. Mack were having an argument and that he could not straighten it out and that Mr. Stowell needed to go back there. Christopher Titze made sure that a server other than Petitioner delivered the hollandaise sauce to the customer. Later, Christopher Titze observed Petitioner yelling and screaming and saw her take her purse and comment "this is unfair" and that "she was leaving." The May 15, 1993 incident was the only occasion upon which Petitioner complained to Christopher Titze about Mr. Mack's conduct. Other servers had complained to Christopher Titze about Mr. Mack's conduct. They told Christopher Titze that Mr. Mack was hard to work with and that he was very particular on tickets, making sure that customers were charged for food. The servers reported to Christopher Titze that Mr. Mack was concerned about food costs and that Mr. Mack skimped on some things. The other servers reported that Mr. Mack was rude about the way he went about doing his job and adhering to rules in the restaurant. Christopher Titze observed that Mr. Mack was loud when operating under stress. Mr. Mack especially did not like it when tickets were not properly written, and he complained about it. Christopher Titze observed that Mr. Mack would use the word "shit" and similar language when he was under stress. He would direct his remarks to servers: "You need to write this shit right". Christopher Titze heard the kitchen staff call the servers "bitches" on one or two occasions. Christopher Titze has no recollection of doing anything in response to the remarks by the kitchen staff directed to the servers. Christopher Titze never observed nor heard servers complain that the cooks were not getting out their orders quickly as a means of being spiteful to the servers. Christopher Titze never observed the kitchen staff holding or manipulating their genitals in the presence of servers. Lori Helms was a server who worked on the shift with Christopher Titze. She reported to Christopher Titze that a cook named Wendell Holmes had been requested to prepare an employee meal for her, to which Mr. Holmes stated: "I'll make you a cum sandwich." When the incident was reported to Christopher Titze, he told Mr. Stowell. Mr. Stowell sent Mr. Holmes home that day. Mr. Holmes was subsequently fired, having never been allowed to come back and work at the restaurant beyond the day he was sent home. By Christopher Titze's observation Ms. Helms was made to cry by Mr. Holmes' conduct. Christopher Titze has no recollection of the conduct of Mr. Mack causing Ms. Helms to cry or observing her to cry on any occasion other than the incident with Mr. Holmes. Terri Dixon was a server at the Parkway restaurant from November 2, 1992 until April 1993, when she was fired by Mr. Stowell. Ms. Dixon observed that Mr. Mack was rude and that he would use vulgar language. She observed that Mr. Mack would raise his fist at you and that his conduct seemed threatening. Mr. Mack referred to Ms. Dixon as "you little white girl", "you little bitch", and "you little honkey girl". Cooks would refer to Ms. Dixon as "whitey" "honkey" and "you white bitch". This made her feel intimidated. Which cooks other than Mr. Mack made these remarks was not proven. Ms. Dixon complained to a cook named Jason about an order that she believed was not being prepared in a timely manner. Apparently, her customers were complaining about the timeliness. Jason responded to her by saying, "shut up, you white bitch" and "I will stomp your white ass into the ground". Ms. Dixon observed other cooks shaking spatulas at her. Ms. Dixon explained that when she thought that the cooks had had ample time to prepare the food she complained to the cooks. The response by the cooks was to the effect, "I will give you your food when I get well and ready to." Ms. Dixon had the experience that when service of the food was delayed, customers did not want to tip her. A food preparation employee made a number of attempts at asking Ms. Dixon to go out with him. She considered his actions to be harassment. This same person also offered her drugs. Ms. Dixon complained to Mr. Stowell about that conduct by the male employee. After her complaint, the situation did not improve. What action, if any, that Mr. Stowell took to address her complaint is not clear. Ms. Dixon did not indicate that she reported back to management to inform management that she was continuing to be approached by the food preparation employee. Ms. Dixon observed the incident between Ms. Helms and Mr. Holmes. She saw Mr. Holmes grab his genitals and say "well how about I give you a cum sandwich." Ms. Helms worked at the Parkway restaurant from around January or February, 1993, until sometime in May 1993. She quit her job as a server at about the same time that Petitioner last worked at the restaurant. Ms. Helms describes what she considered to be rude conduct by Mr. Mack. These comments were directed to Ms. Helms pertaining to the manner in which she hung or presented the customer food order tickets to the cook. He made remarks calling her "stupid", "that drugs had eaten her brain" that "she was crazy" and would refer to her as "bitch". Mr. Mack yelled at her and she was afraid of him. These circumstances usually occurred when the restaurant was busy. Otherwise, Mr. Mack was nice to Ms. Helms when she first came to work in the morning. At busy times Mr. Mack would complain to Ms. Helms that she was not writing her tickets right and would grab them off the wheel where they were placed. To Ms. Helms, it seemed as if Mr. Mack would be under pressure and would take it out on her. In the exchanges where Mr. Mack would use the terms "bitch, stupid and crazy" directed to Ms. Helms, the food that she was responsible to serve would be sitting at the service window and available to be served. On these occasions Ms. Helms would direct argument back to Mr. Mack. She would then go back to the bathroom area to collect herself sufficiently to serve the food. Under these circumstances the food service would be delayed. At times when Ms. Helms complained about the delays in serving food to the customers when the restaurant was especially busy, responses from the cooks would be "hold on a damn second, baby, I can't do everything at once." At times these remarks were made in a manner which Ms. Helms believed to be screaming. The cooks would also say, "I'm going to do it and you are the one who messed it up in the first place and this wouldn't never have happened in the first place if you would have written the damn ticket wrong." Ms. Helms observed cooks dancing around and grabbing their crotches. She did not indicate complaining about these observations to management. While working at the restaurant Ms. Helms would cry often. In this respect Ms. Helms acknowledges that she is a very sensitive person and that when she was yelled at, this made her cry. This conduct hurt her feelings. In instances when she would cry Ms. Helms would go to Mr. Stowell and he would console her by telling her to stop crying and go about her business and that it would be okay and that Ms. Helms should not allow the conduct by the other employees to get to her. Ms. Helms describes the incident with Mr. Holmes in which she asked Mr. Holmes to make a sandwich for her and he replied, "baby I'll make you a cum sandwich". She responded by telling Mr. Holmes not to talk to her that way. The incident was one of the reasons that led her to quit her position at the Parkway restaurant. As described before, Ms. Helms reported the incident to Mr. Stowell. Soon after the incident with Mr. Holmes, Ms. Helms quit her job. As Ms. Helms observed, Mr. Stowell was present when cooks would use words such as "bitch", "fuck", "shit", "damn" and "ass", in Ms. Helms' presence. She considered these remarks to be directed to her. With the exception of the word "bitch", it is not clear that the use of profane language was directed to Ms. Helms as opposed to merely being stated in her presence. On Petitioner's last day, Ms. Helms, although she was not in the immediate vicinity of the incident, overheard part of the exchange between the Petitioner and Mr. Mack. She heard both Mr. Mack and the Petitioner yelling back and forth about the hollandaise sauce. Ms. Helms then observed the Petitioner go to the back of the restaurant to smoke a cigarette and that the Petitioner was crying. Ms. Helms took the customer the hollandaise sauce. Ms. Helms was told not to wear socks as part of the attire for servers because the servers were expected to wear pantyhose. Nonetheless, she wore socks again after being told not to do so. Ms. Helms observed that cooks wore their clothes loosely and that they would hang down to the extent where she could see their underwear and could see Mr. Mack's "butt crack". She did not indicate that she complained about these observations to management. Ms. Helms also had problems with a female server Kim Tuten whom Ms. Helms described as making her feel unwelcome and treating her in a rude manner. One time Ms. Tuten told Ms. Helms "I'll kill you." Ms. Tuten called Ms. Helms "stupid." Ms. Helms said that she "hates Ms. Tuten." Ms. Helms observed Ms. Tuten using profane language. Ms. Tuten used the words "fuck, damn, shit and ass". Ms. Tuten also called Ms. Helms "a bitch". Linda McCord began work at the Parkway restaurant in 1992, working on the night shift. She quit her position as a server at the restaurant because of a conflict with her school schedule. She came back to work at the restaurant and quit a second time because of Beth Titze's actions in "dressing down" Ms. McCord. Although Mr. Mack worked on a different shift than Ms. McCord, the shifts overlapped to some extent this allowed her to watch Mr. Mack perform as a cook. She observed Mr. Mack to be intimidating. She saw him early in the morning on weekends. When Mr. Mack first arrived he acted as if nothing was right and "would just raise hell at everybody, whether you were a server, a dishwasher, you know whatever." Ms. McCord observed Mr. Mack and his son Governor Mack, another cook, use the words "fuck, fuck you and mother fucker", sometimes directed to her but a lot of times in conversation between the cooks or with a dishwasher or with other servers. Ms. McCord observed the cooks on Mr. Mack's shift, to include Mr. Mack, "brag about their physical anatomy and what they do and how they do and that they would talk sexually about women." The words that were used in the discussions between the cooks about sexual matters made Ms. McCord feel uncomfortable and offended. Ms. McCord complained to Mr. Stowell about the profane language by the cooks. His response to the complaints was "I'll see about it". She made similar complaints to the night manager who said he would talk to the day manager who was Mr. Stowell. It is not clear whether Ms. McCord received a satisfactory response to her complaint. Donna Land was a server at the Parkway restaurant. She is and has been the Petitioner's roommate since 1989. Her employment at the Parkway restaurant lasted a few days. She quit her job at the restaurant shortly after Petitioner's last day as a server. Ms. Land observed that Mr. Mack was "fussy" on the day that Petitioner was last employed at the restaurant. Ms. Land was standing near the window where the food is delivered when she saw Petitioner approach that area. Petitioner asked Mr. Mack to do her a favor and get the Petitioner some hollandaise sauce. At that time Ms. land observed that Mr. Mack was real busy. The ticket holder was full and Mr. Mack said "I've got to have a ticket in order to do that." To which Petitioner responded that Mr. Stowell was coming with the ticket. Shortly thereafter Mr. Stowell came into the conversation. After Stowell showed up Mr. Mack started yelling and cursing Petitioner and shaking his spatula in her direction. Mr. Mack said "I'm not going to get you this, god damn this." Mr. Mack called Petitioner a "fucking white bitch" and told the Petitioner to "drop dead" and that he was "going to kill her." At this juncture Petitioner started to cry. Mr. Stowell then slid a bowl across and told Mr. Mack to give Mr. Stowell some hollandaise sauce. Mr. Mack slid the bowl back and said "you go to hell, I'm not giving you it either." Mr. Mack then said "get that fucking white bitch out of my face before I stomp her to the ground." As Ms. Land recalls, Mr. Stowell then told Petitioner to go home. Petitioner replied "I can't believe you are letting him talk to me like this." Mr. Stowell told Petitioner again to "go". Petitioner stepped away and remarked to the effect that, "I'm not going anywhere" and asked Mr. Stowell if he was firing her. Mr. Stowell then responded by telling the Petitioner that she was fired. It appears that Mr. Stowell was trying to remove Petitioner from a threatening situation, not intending to fire her until Petitioner refused to leave. Petitioner walked out of the restaurant at that time. Ms. Land was upset by these events. Mr. Stowell told Ms. Land that the Petitioner would be all right and that he would give her a call later. In the conversation between the Petitioner and Mr. Mack that was overheard by Ms. Land, Petitioner remarked that while the customer had been served hollandaise sauce that it was not enough and the man wanted more as a side order. The extra hollandaise sauce had not been put on the ticket as required by restaurant policy. Ms. Land overheard the kitchen staff using the words "fucking, pussy and bitch." Ms. Land perceived that the words were directed at her and she felt a little embarrassed. Ms. Land observed the kitchen staff put their hands in their pants, which they wore very low, meaning placing their hands in their groin area. Ms. Land is not sure whether the manager, Mr. Stowell, observed this conduct and she did not make a complaint about the conduct. Ms. Land observed cooks in the kitchen yell at Ms. Helms and that Ms. Helms cried a lot. Ms. Land worked with a male server named Joe. She never observed the cooks give Joe "a hard time." Angela Brumblaugh worked at the Parkway restaurant from September 1992 into August 1994 as a hostess, server and closing manager. She also lived with Michael and Beth Titze for four months. Christopher Titze was her friend during the time Ms. Brumblaugh worked at the restaurant. During the time that Ms. Brumblaugh worked at the restaurant she overheard curse words and profanity from cooks, servers, bus-boys and dishwashers. Those words that she heard were "damn, shit, and fuck." Among others, she heard Petitioner use those words. The context in which she heard those words used was related to a general griping about something that was not going right while working at the restaurant. By example, food orders that did not come out fast enough or someone getting in the way of employees' movements or a customer that was too demanding. The context was one in which the situation was stressful due to the time constraints for preparing and delivering food orders. Ms. Brumblaugh observed that Mr. Mack was a stickler about marking things that were to be charged for on the tickets. If they were not marked, and other cooks were not enforcing the policy about requiring the tickets to be marked so that items could be charged for, he would "get on" those other cooks. Ms. Brumblaugh never heard cooks refer to Petitioner as "fucking white bitch." Ms. Brumblaugh never observed what she considered to be a sexual problem involving employment discrimination. Ms. Brumblaugh observed Petitioner's overall disposition as being happy and excited one minute and "pissed off and bitching and yelling" the next minute. Ms. Brumblaugh overheard Petitioner yelling about food being late coming out the window and in the course of these remarks Petitioner was profane. Petitioner never mentioned to Ms. Brumblaugh that she considered that employment discrimination was being directed to the Petitioner based upon Petitioner's sex. Ms. Brumblaugh observed kitchen personnel place their hands in their crotch area. She perceived these actions to be to adjust shorts or to scratch. As hostess, Ms. Brumblaugh was expected to remind servers about the correctness of their uniforms. She gave these reminders. If a server was missing a bow tie she would get them another and at times when servers were missing hose there were hose available at the restaurant; if not available, the server was reprimanded and told to wear the hose. Kim Taylor has worked as a server at the Parkway restaurant on and off for a period of ten years. She describes herself as a close friend of Petitioner. Ms. Taylor worked on the day shift with Petitioner. Ms. Taylor would cry when Mr. Mack yelled at her for not writing the tickets properly. She did not complain to management about this problem, but resolved the issue by working in an area separate from Mr. Mack. Ms. Taylor heard kitchen employees refer to servers as "bitch". Ms. Taylor observed that when problems developed between the servers and the cooks the food service was delayed and that influenced the amount of money the servers earned. Ms. Taylor did not observe Mr. Stowell being present when the kitchen employees used profane language, but surmises that Mr. Stowell heard it because it could be heard throughout the restaurant. Furthermore, on those occasions Mr. Stowell would come and tell the kitchen employees to "chill out" or "you need to stop". In Ms. Taylor's view these attempts at correction were unavailing. However, Ms. Taylor does not appear to have reminded management that its attempts at correction were not successful. After Petitioner's last day, Ms. Taylor talked to the Petitioner and following that conversation asked Beth Titze to rehire the Petitioner. Beth Titze worked at the Parkway restaurant between the hours of 8:00 a.m. and 2:00 p.m. on weekdays and from around 8:00 to 8:30 a.m. to 2:30 to 4:00 p.m. on weekends. Although Ms. Titze had no specific recollection as to the exact words of the profanity that were used, she does recall profanity being used by the cooks in her presence. When this occurred she told them to cease. When circumstances would occur between servers or cooks that involved swearing and it was reported to her she would intercede. Usually this profanity was based upon provocations by servers yelling at cooks, but sometimes it involved cooks provoking servers. The circumstances for these exchanges were related to times of stress. When informed of the problems Ms. Titze would go into the area and yell, "watch your mouth", "what's the problem" or "what do you need" or "what is the situation here". Ms. Titze expected Mr. Stowell to make decisions on whether an employee should be dismissed. If an employee was repeatedly late, Ms. Titze would remind Mr. Stowell that he had a problem and leave the decision to Mr. Stowell to dismiss a server if the server continued to be late. Her general experience was that most employees were on time for work. When employees were not in the proper uniform Ms. Titze expected Mr. Stowell to see that they got into proper uniform. Whatever disciplinary action was to be taken for not being in proper uniform was left over to Mr. Stowell. Ms. Titze has never observed a point in time when all servers were out of the proper uniform. Ms. Titze established that the servers' earnings and benefits package was a payment of $2.31 an hour, plus tips and a week's paid vacation for servers who had worked at the restaurant for a year. Ms. Titze observed that Petitioner was often late for work, especially on weekends or occasions when it was important for the Petitioner to be on time. Ms. Titze indicated that Petitioner was habitually late for work. Ms. Titze described the fact that Petitioner was not always in uniform, especially related to the refusal to wear nylons even in the instance where Ms. Titze had bought nylons to provide Petitioner. Another problem that Ms. Titze observed was that the Petitioner did not wear appropriate shoes. Petitioner wore cloth shoes that were a type of canvas tennis shoes which were not acceptable foot wear. When Ms. Titze spoke to Mr. Stowell about Petitioner's problems with being late for work and not being in the proper uniform, a conversation which she had with him on frequent occasions, Mr. Stowell responded that he, "did not have anyone to take her place at that time." As described before, Petitioner sought reemployment from Ms. Titze. On that occasion Petitioner was in uniform, to include the proper foot wear. Petitioner remarked to Ms. Titze that she had the correct shoes and could she please have her job back. Ms. Titze replied that the fact that Petitioner was always late and that she could never depend on her, made Ms. Titze feel that she could not use Petitioner at that point. The decision on reemployment was made by Ms. Titze because she was managing the Parkway restaurant at that time. Ms. Titze has no personal knowledge of any conduct directed to Petitioner that could be considered discrimination on the basis of sex and no conduct of that type was reported to Ms. Titze. Contrary to testimony by other witnesses, Ms. Titze did not say, in jest, that she was going to cut Petitioner's legs with a razor blade, direct profanity at servers or make an obscene gesture at servers with her middle finger. Ms. Titze does admit to swearing under her breath by using the word "damn" in certain circumstances that occur at the restaurant. Ms. Titze has not observed the buttocks of the male cooks while they were working at the restaurant, nor seen those cooks grab their crotches. Ms. Titze, from her observations, believed that the slow downs in service were related to the volume of business and not a deliberate ploy by the cooks. She is correct. Moreover, the delays in service created by arguments between servers and cooks explain why customers did not receive their food as quickly as they would have preferred, not the idea that cooks alone contrived to delay the service. As a consequence the servers' loss of tips for late service cannot be equated to unilateral action by the cooks to interfere with the tips received by servers. Petitioner perceived the relationship with the kitchen employees as being an intense situation, especially when the restaurant was busy. Mr. Mack in particular was seen by the Petitioner as being upset when the restaurant was busy. She observed him shaking his spatula and making gestures with his hands and yelling out slurs at the slower servers and picking out problems on the tickets which Petitioner did not believe to be a "big deal." Petitioner described the conduct by Mr. Mack as "ranting and raving." He would remark that he "was not going to do this damn food for you this way" and "this ain't the way its on the fucking menu." By virtue of complaints which Petitioner made to Mr. Stowell there was a period in which Mr. Mack and the Petitioner "just laid off each other." At times Mr. Mack and other cooks called Petitioner a "bitch" or "fucking bitch". Cooks would also refer to Petitioner as "stupid bitch". Petitioner heard cooks refer to Ms. Dixon as "stupid bitch" and Ms. Helms as a "dumb bitch". When this occurred Petitioner observed that Ms. Dixon and Ms. Helms would often cry. Petitioner observed Mr. Mack tell Ms. Helms that she was "crazy", that "crack" drove her "crazy" and had "eaten her brain." Governor Mack referred to Petitioner on one day as "damn bitch". She replied that he was a kid and should not talk to people that way. Petitioner observed the cooks wearing loose clothing such that you could see part of their shorts with words written on the shorts like "yes" and "no". When the cooks bent over in the kitchen Petitioner could see their "cracks". Petitioner considered the clothing that the cooks wore that allowed her to see their shorts to be sexually offensive. What she meant by that is further described as, she "did not like seeing a man with his pants half hanging down" and that "this was a restaurant setting and they were representing the restaurant and that they were dressed just like on the street" and that it was "vulgar to her." Petitioner observed the cooks place their hands in their crotch area where the genitals are and at the same time observed that the cooks were talking about girls using terms like "that baby" or "I got her". Petitioner felt degraded by the profanity directed to her and the conduct that she observed and the physical conduct that she observed on the part of the kitchen employees. Petitioner made a general complaint to Mr. Stowell about the vulgar language used by the kitchen staff. She mentioned in "walking and talking lightly" to Mr. Stowell that he should tell the cooks "to pull up their pants or something and to tell the cooks to dress a little better." Petitioner describes that she had problems getting her orders from the kitchen when she probably did something to irritate the cook. On a few occasions Petitioner believed that the cooks were deliberately delaying her orders, but acknowledges that those were circumstances in which she did not have her ticket correct, though she believes that it was correct enough to have gotten the order out. When these arguments were engaged in with the cooks concerning the delays, the food would be sitting there ready for serving, and it would not be served while the argument went on between Petitioner and the cook. On these occasions the cooks would say "I ain't gonna cook this shit for you" and would call the Petitioner a "bitch". On her last day Petitioner was told by Mr. Mack that he was the only cook scheduled for his part of the restaurant and words to the effect that he "could not believe" that circumstance and complained that Mr. Stowell can't get things right and that he would be glad when Mr. Stowell was gone. Petitioner remarked to Mr. Mack to the effect "are you having a bad morning", and he replied that he was "sick of this." Throughout the morning Petitioner observed that Mr. Mack was under stress and that he was the only cook working in that area. As Petitioner describes the situation on her last day, she delivered a customer a skillet that had broccoli and hollandaise sauce. The customer did not believe that it had enough hollandaise sauce and asked Petitioner to get more. Petitioner left the food order ticket with the customer and took up other duties. She then passed Mr. Stowell and asked him to get the ticket, because she needed to get the customer some more hollandaise sauce. Mr. Stowell said that he would. Petitioner then went to the kitchen area and asked Mr. Mack if he would give her some hollandaise sauce, "this man needs some". Mr. Mack asked where her ticket was for the extra hollandaise sauce. Petitioner told Mr. Mack that Mr. Stowell was coming with the ticket. Mr. Mack said "I ain't giving you shit". Petitioner made a further request for the hollandaise sauce and repeated that Mr. Stowell was coming with the ticket. During this exchange Mr. Mack told the Petitioner to "drop dead" and called her a "white fucking bitch" and that he was "going to stomp her into the ground." When he make these remarks he was yelling. When Mr. Stowell approached Petitioner and Mr. Mack, the cook continued his remarks by saying he was "going to kill" Petitioner and calling her a "fucking white bitch". Mr. Stowell said "here's your ticket, give me the hollandaise sauce now". Mr. Mack responded "I ain't giving you shit either." Mr. Mack told Mr. Stowell "you get that white fucking bitch out of my face, I'm going to kill her. Get her out of this building, get her out of here. I'm going to kill her or stomp her face into the ground". Under these circumstances, in which Mr. Stowell perceived that the Petitioner was at risk, Mr. Stowell told Petitioner to leave and go home. Petitioner started to leave, then told Mr. Stowell, "you are going to have to fire me if I have to leave this job for the way he just talked to me", referring to Mr. Mack's remarks. Petitioner said to Mr. Stowell "please fire me". Mr. Stowell then responded by saying, "go home, you're fired, Elisa; if that's what you want, you are fired". Petitioner then stated to Mr. Stowell "that's all I wanted to hear." In her testimony Petitioner failed to acknowledge that she had been profane to Mr. Mack. Petitioner felt threatened by Mr. Mack and cried. At hearing Petitioner described her motivation on the last day to be that she was not going to quit the job. She was "not going to be cussed like a dog and then have to walk away" and that "it was better to have been fired." Under that arrangement Petitioner testified "I didn't have to ever come back there". After she left the restaurant on the last day that Petitioner was employed at the Parkway restaurant, she told an acquaintance, Ruby Wilson, who works part-time at the Village Inn restaurant on North Monroe Street, and part- time at Jerry's restaurant at the airport, that Petitioner "quit" her job at the Parkway restaurant. Petitioner further told Ms. Wilson that she "wasn't worried about it and would go back, talk to Beth and get the job back". Petitioner had also told the Unemployment Compensation Commission referee, in her hearing on unemployment compensation, that she was "going to make it final that day, and that day I finalized it." She also told the referee that she would have probably quit anyway if circumstances did not improve at the restaurant. Petitioner acknowledged that she used profanity while working at the restaurant such as "damn it, they are not getting my food out for me" or "damn it, I can't believe I'm being cussed at again" or "I just can't take this shit no more". By contrast Petitioner denies profane exchanges with the cooks. That testimony related to exchanges is not accepted. Petitioner remembers the reason Ms. Titze gave her for not reemploying Petitioner was because the Petitioner did not wear pantyhose. An Unemployment Compensation Commission employee advised Petitioner to go back and try an obtain her job and this led to her conversation with Ms. Titze requesting reemployment. Joseph Halladay has worked as a server with Respondent on and off for seven or eight years, but his employment on the shift with Petitioner was only for a couple of weeks at the end of Petitioner's employment. During times when he worked for the Respondent he did not receive any sexual or profane abuse by any of the cooks. He did not observe what he considered to be sexual harassment directed to any other server from the cooks. Mr. Halladay noticed a difference in conduct by the employees at the restaurant when they were in the rush period. In that setting things were hectic. Mr. Halladay has heard employees yell things like "get out of my way or move". On the last day that Petitioner worked at the restaurant Mr. Halladay observed Petitioner and Mr. Mack yelling back and forth one to the other. He does not recall exactly what was being said. He describes the matter as "quite a bit of bickering going on between both parties." As Mr. Halladay recalls, the exchange between Petitioner and Mr. Mack was real loud. Mr. Halladay did not observe the cooks flaunting their genitals or grabbing their crotches or wearing their pants so low that the cooks buttocks could be seen. He did observe their underwear showing. He made no complaint about the latter observation. Mary Darlene Roy worked ten years with Respondent to include part of the time with Mr. Mack. She left that employment at the beginning of 1994. While employed, Ms. Roy did not detect what she considered to be sexual abuse or harassment by Mr. Mack or other cooks. Ms. Roy did observe that when order tickets were not correctly filled out the cooks would get upset. In particular, when the tickets were not right and the cooks prepared the wrong food and had to redo the food preparation, this would upset them. When Petitioner was late to work Mr. Stowell would ask other servers, to include Ms. Roy to cover Petitioner's work station. On some occasions Mr. Stowell had requested Petitioner to pick up a server named Kitty Roe and bring her to work. This made the Petitioner late. On other occasions Petitioner was late for reasons of her own making. On one occasion Ms. Roy overheard Mr. Stowell correct Petitioner for not having a bow tie on. Ms. Roy heard Petitioner and Mr. Mack arguing "a lot". The arguments had to do with orders not being picked up that were "piling up" and tickets that were not being written right. Mr. Mack yelled at Petitioner about those problems. Ms. Roy recalls that Mr. Mack was a stickler about problems with tickets. In Ms. Roy's experience other cooks would get upset when tickets were not being written properly and orders were not being picked up on time. They were not as verbal about the problems as Mr. Mack would be. Ms. Roy never heard Mr. Mack refer to Petitioner as "a fucking white bitch" or "a white bitch". Mr. Titze established that Mr. Mack had worked for the Respondent for approximately five years in the capacity of lead cook. This meant that Mr. Mack was responsible for training cooks. Mr. Titze described Mr. Mack as being very high strung. When tickets were not correct Mr. Mack would pull them down and make the server correct them. If the tickets were not correct the cooks would prepare the wrong food and this would throw the cycle of work off. Under these circumstances Mr. Mack was observed by Mr. Titze to "fly off the handle". Mr. Titze identified that the employee manual prohibits vulgar language or failure to follow a supervisor's instructions. The managers, according to the manual, are expected to squelch the profane language. Mr. Titze confirmed that Mr. Holmes was fired for the sexual advances that he made to Ms. Helms. Other than the Holmes incident, Mr. Titze was not aware of conduct which might be considered sexual harassment. Prior to the events involving the Petitioner's claims related to discrimination on the basis of sex, neither Mr. Titze nor Ms. Titze had received complaints of employment discrimination against Petitioner or other servers. At the end of May, 1993, Petitioner applied for unemployment compensation. She was granted that compensation in July, 1993. Before applying for unemployment compensation Petitioner tried to gain employment at several restaurants other than Respondent's restaurant. She managed to obtain a job at Banjo's restaurant in Tallahassee, Florida, but only worked there for a period of 20 minutes when she was told that she was being dismissed for reasons that were apparently unrelated to her performance at that restaurant. In lieu of compensation, Petitioner participated in the Training Investment Program which allowed her to receive schooling directed toward a profession. That schooling was at Lively Vocational Technical School in Tallahassee, Florida, to become a barber. The tuition at Lively was paid by another program. The Training Investment Program paid $69.00 per week through May, 1994, when Petitioner concluded her schooling to become a barber. In this arrangement Petitioner was not required to seek employment while in school. Petitioner began employment as a barber or hair stylist beginning June, 1994. Petitioner's gross earnings for the period that she worked at the Parkway restaurant were $3,167.50. The value of the TIP income for the year that Petitioner received that money was $3,588.00. The $3167.50 earned by Petitioner when employed by Respondent was for an 11-week period covered by a diary kept by Petitioner related to her earnings as extrapolated by an employe with the Unemployment Compensations Commission. When annualized to represent the period from the beginning of June 1993 until the end of May, 1994, when Petitioner was unemployed and attending barber's school, the anticipated earnings had Petitioner maintained her position with Respondent would have been $14,971.00. That $14,971.00 is offset by the $3,588.00 which she was paid as a participant in the TIP program. Therefore, the backpay, including tips and wages, for the period that Petitioner was out of work would amount to $11,383.00. The only benefit that Petitioner would be entitled to is a week's earnings for a vacation period amounting to $72.00, representing a work week of 34 hours at $2.13 per hour.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's claims of discrimination based upon sex. DONE and ENTERED this 24th day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1995. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraphs 3 through 7 are subordinate to facts found. Paragraph 8 is rejected. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception of the latter phrases referring to "mother fuckers" and "fuck you, mother fucker" which phrases are rejected. Paragraphs 15 and 16 are subordinate to facts found. Paragraph 17 is rejected. Paragraph 18 is subordinate to facts found with the exception of the reference to comments about breasts which is rejected. Paragraph 19 is subordinate to facts found. Paragraph 20 is contrary to facts found. Paragraph 21 is accepted in the reference to verbal aggression and is rejected in the reference to physical aggression. Paragraph 22 is subordinate to facts found with the exception of the phrase which says describing their genitals and "you want some of this baby" which is rejected. Paragraph 23 is subordinate to facts found with the exception that the suggestion that the cooks were directing their conduct specifically to the Petitioner is rejected. Paragraphs 24 and 25 are not necessary to the resolution of the dispute. The first sentence to Paragraph 26 is subordinate to facts found. The latter sentence is rejected. The first sentence to Paragraph 27 is rejected. The second sentence is subordinate to facts found. Paragraphs 28 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to facts found. The second sentence is subordinate to facts found with the exception of the phrase that the attempts to stop the conduct did not do any good which phrase is rejected. The third sentence to Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found in its first sentence. The first phrase in the second sentence is subordinate to facts found. The latter phrase is not necessary to the resolution of the dispute. The third sentence is contrary to facts found. The fourth and fifth sentences are rejected in the suggestion that the complaint by the server's father led to the dismissal of the cook. The last sentence in Paragraph 32 is subordinate to facts found with the exception of the suggestion that the complaint was to no avail, which is rejected. Paragraph 33 is subordinate to facts found. Paragraphs 34 and 35 are contrary to facts found in the suggestion that orders were deliberately slowed up resulting in lower tips to the servers. The offensive language that is commented on in Paragraphs 34 and 35 is subordinate to facts found. Paragraphs 36 and 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 is rejected in its suggestion that the Petitioner's nonconformance with uniform requirements were comparable to the experience with other servers in terms of frequency. Paragraph 40 is subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found in the suggestion that Petitioner was occasionally late, is subordinate to facts found in the remaining phrase. Paragraph 44 is subordinate to facts found. Paragraph 45 is not necessary to the resolution of the dispute. Paragraphs 46 and 47 are not necessary to the resolution of the dispute. Paragraph 48 is subordinate to facts found. Paragraph 49 is not necessary to the resolution of the dispute. Paragraph 50 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of the dispute. Paragraph 51 is subordinate to facts found. Paragraphs 52 through 54 are not necessary to the resolution of the dispute. Paragraphs 55 through 63 are subordinate to facts found. The first sentence to Paragraph 64 is not necessary to the resolution of the dispute. The latter sentence is subordinate to facts found. Paragraphs 65, 66 and 67 in the non-parenthetical references are subordinate to facts found. The parenthetical references are an incomplete discussion of the facts found in the recommended order. Paragraph 68 is subordinate to facts found. Paragraphs 69 and 70 are not necessary to the resolution of the dispute. The first sentence to Paragraph 71 is contrary to facts found. The second and third sentences are subordinate to facts found. Paragraph 72 is contrary to facts found in its suggestion that Petitioner did not use profane language in the confrontation with the cook. Paragraph 73 is contrary to facts found. Paragraph 74 is a conclusion of law. Paragraph 75 is contrary to facts found. Paragraph 76 is not necessary to the resolution of the dispute. Paragraph 77 is not necessary to the resolution of the dispute. The first sentence to Paragraph 78 is not necessary to the resolution of the dispute. The latter sentence to Paragraph 78 is subordinate to facts found. Paragraphs 79 and 80 are not necessary to the resolution of the dispute. Paragraph 81 is contrary to facts found. Paragraphs 82 through 88 are not necessary to the resolution of the dispute. Concerning Paragraphs 89 and 90, whatever Petitioner's intentions prior to the confrontation with the cook, once that confrontation transpired Petitioner opted to be fired rather than be sent home to get away from the threats by the cook or to quit her employment of her on volition. Paragraph 91 is subordinate to facts found. Paragraphs 92 through 95 are rejected. Paragraphs 96 through 99 are subordinate to facts found. Paragraph 100 is not necessary to the resolution of the dispute. Paragraph 101 is subordinate to facts found in the first sentence. The latter sentences in Paragraph 101 are irrelevant. Paragraphs 102 through 104 are acknowledged as attempts at impeachment but are rejected in favor of the facts found in the recommended order. Paragraphs 105 through 114 are subordinate to facts found. Paragraph 115 is not necessary to the resolution of the dispute. Paragraphs 116 and 117 are subordinate to facts found. Paragraphs 118 through 120 are not necessary to the resolution of the dispute. Paragraphs 121 through 124 are subordinate to facts found. Paragraphs 125 through 133 are not necessary to the resolution of the dispute. Paragraph 134 is irrelevant with the exception of the last sentence which is subordinate to facts found. Paragraphs 135 through 145 constitute legal argument. Respondent's Facts: Paragraphs 1 and 2 are subordinate to facts found. The first phrase to Paragraph 3 is accepted to the extent that conditions were stressful and the expectation of timely service to patrons. The remaining language in Paragraph 3 is rejected in that it was not established that the employees were aware of any signs that incrementally addressed the time standards for service. Paragraphs 4 through the first two sentences of Paragraph 8 are subordinate to facts found. The phrase pertaining to Petitioner's former employment is not relevant. The remaining portions of Paragraph 8 are subordinate to facts found. Paragraphs 9 and 10 constitutes legal argument. Paragraphs 11 through 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute with the exception of the discussion of the basis for Petitioner's departure from the restaurant on May 15, 1993, which is subordinate to facts found. Paragraphs 16 and 17 are not necessary to the resolution of the dispute. Paragraph 18 is not relevant. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 24 are subordinate to facts found. Paragraph 25 is not necessary to the resolution of the dispute. Paragraph 26 and the first sentence to Paragraph 27 are subordinate to facts found. The remaining sentences within Paragraph 27 constitute legal argument. Paragraph 28 is subordinate to facts found. Paragraph 29 is contrary to facts found. Paragraph 30 constitutes a correct portrayal of the process engaged in by the hearing officer; however, it is not necessary to report those activities in the fact finding. COPIES FURNISHED: Patricia A. Renovitch, Esq. P. O. Box 6507 Tallahassee, FL 32314-6507 Stephen Marc Slepin, Esq. 1114 E. Park Ave. Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order assessing petitioner A & K Feed Store $31,899.62, with interest on the $22,468.73 of tax at the rate of 12 percent per annum from October 23, 1981. RECOMMENDED this 14th day of June, 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNTSON 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 14th day of June, 1984.
