The Issue Whether Respondent is guilty of violating National Fire Protection Rule 10, 4-4.1, Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) as charged in the January 25, 2005, Administrative Complaint; and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondents, Lorenzo and Francenia Greene, held a 2014 license for "Fran's Floating Ribs" at North Market Street, in Webster, Florida, having been issued license numbr 7050128. Such licenses are issued and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Agency). At all times material, Respondent's address was 524 North Market Street, Webster, Florida 33597. However, it appeared at hearing that the property and/or business has been sold since the Administrative Complaint was filed. At all times material, John Dancho was employed by the Agency as a Sanitation and Safety Specialist. Mr. Dancho has been an inspector for five years. Prior to that, he worked for a restaurant chain called the "Victoria Station Restaurants" for 11 years. Mr. Dancho has earned an AAS degree in hotel/restaurant management from Paul Smith College and a B.S. in hotel/restaurant management from Florida International University. When Mr. Dancho joined the Agency he was formally trained and standardized in the rules and laws regulating public lodging and food service. Additionally, Mr. Dancho has completed ongoing continuing education training for food service, lodging, and fire certification. Mr. Dancho conducts between 600 to 900 inspections for the Agency each year. On October 25, 2004, Mr. Dancho inspected the premises of Fran's Floating Ribs Restaurant. During the inspection, Mr. Dancho prepared a Food Service Inspection Report setting forth his findings. On that date, Mr. Dancho had observed that there was no proof on the premises of food manager certification and no proof of employee training done by the food manager. He also observed a fire extinguisher with a tag that was out-of-date. He further observed problems with the hot and cold water at the employee hand washing sink and that a light shield was missing from the lights inside the unit. Mr. Dancho informed Respondent, Lorenzo Greene, that the fire extinguisher violation needed correction by November 8, 2004; that the food manager's certification and employee training needed correction by November 25, 2004; and that Respondent had until the next routine inspection to correct the other violations. On January 10, 2005, Mr. Dancho re-inspected Fran's Floating Ribs Restaurant. During his inspection, Mr. Dancho prepared a Call Back/Re-inspection Report, setting forth his findings from the re-inspection. On January 10, 2005, Mr. Dancho observed that some of the violations that were in the warning status from the previous inspection, October 25, 2004, had been corrected, but that other violations had not yet been corrected. The hot water at the hand washing sink and the light shield had been corrected. However, Mr. Dancho observed that the following violations had not been corrected: lack of food manager certification on site; lack of employee training on site; portable extinguisher with an out-of-date tag; and no cold water at the hand washing sink. A critical violation is a violation of the utmost importance which needs immediate correction. A non-critical violation is a violation that is not a critical violation, but one that needs to be corrected over an acceptable period of time, usually thirty (30) days or three (3) months. Mr. Dancho testified that lack of proof of food manager certification is a critical violation, because a food manager must be able to ensure the proper operation, safety and sanitation of the unit. He also must be able to train employees in the proper handling of food procedures, and in sanitation and safety of the unit. On January 10, 2005, Mr. Dancho also observed that there was no proof on site of employee training by the certified food manager. Because the food manager is responsible for everything that goes on in the unit and the employees need to have the knowledge required for proper food handling and sanitation techniques, this, too, was a critical violation. On January 10, 2005, Mr. Dancho also observed a portable fire extinguisher with an out-of-date tag. He testified that this, too, was a critical violation. The Florida Fire Code requires fire extinguishers to be checked annually by a registered or certified technician to ensure that they are functional and will work, if needed. Without an up-to-date tag, it may be logically assumed that the fire extinguisher on the subject property had not been inspected within the current annual cycle. Apparently, Respondent's sister, G. Burgohy, was in charge of the premises and signed as receiving the call-back/re- inspection form from Mr. Dancho. (P-3.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order as follows: Requiring Respondent to pay an administrative penalty in the amount of $500.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date this Order is filed with the Agency clerk, and Further, Respondent shall attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 7th day of July, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 42 Tallahassee, Florida 32399-2202 Geneva Burgohy 557 Northwest 3rd Street Webster, Florida 33597 Lorenzo Greene Fran's Floating Ribs 12 Berry Court Mascotte, Florida 34753 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The basic issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her race and thereby engaged in an unfair employment practice within the meaning of Section 760.10, Florida Statutes. The Petitioner asserts that she was discriminated against by the employer's failure to promote her. The Respondent denies any discrimination. At the hearing, both parties presented the testimony of witnesses and offered documentary exhibits. Subsequent to the hearing a transcript of the proceedings was prepared and filed. Pursuant to agreement of the parties, their proposed recommended orders were originally due by no later than February 1, 1988. At the request of the Petitioner, for good cause shown, the filing date was twice extended. On March 21, 1988, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The Respondent also filed a supporting brief. The post-hearing submissions of the parties have been carefully considered in the formulation of this recommended order. Specific rulings on all findings of fact submitted by all parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact. The Petitioner, Rebecca Riley, a black female, began work at Nassau General Hospital in 1971 as a dietary aide or "salad girl." Currently, the Petitioner is employed by the Respondent as a cook. Petitioner's first supervisor was Ms. Hazel Adams. Ms. Adams was a white female. Ms. Adams was food service manager from the time the Petitioner was hired in 1971 until 1980. Ms. Adams became ill in 1975 and was eventually forced to leave her job at Nassau General in 1980 due to her failing health. During the latter part of 1979, the Respondent entered into a management contract with Methodist Regional Hospital Systems to provide new management for the hospital. As part of the new management team, Mr. Ronald Rice was hired by Methodist Regional Hospital Systems to be the new hospital administrator. Mr. Rice served in that capacity from 1980 until 1985. Mr. Rice was well qualified for that position by formal education and prior experience. When Mr. Rice began his employment as administrator, the Respondent hospital had a large number of management and financial problems which it was hoped the new management could resolve. When Ms. Adams left in 1980, Ms. Delia Boynt partially assumed the duties of food service manager. Ms. Boynt also had a severe health problem. Ms. Boynt was a white female. In August of 1981, Ms. Barbara Fletcher became consulting dietician to the hospital. Ms. Fletcher initially worked 8 hours per week, but as Ms. Boynt became progressively more ill, Ms. Fletcher started assuming the duties of food service manager, including doing the kitchen-paperwork, ordering food, and evaluating employees. With the passage of time, Ms. Fletcher's hours increased from 8 to 20 hours per week. Ms. Boynt left the hospital in September of 1982. At that time, Ms. Fletcher was working 20 hours a week as food service manager. Ms. Fletcher was concerned that when she left work each day at noon, there was no one left to function in a supervisory capacity in the kitchen. Because of this concern, Ms. Fletcher approached Mr. Rice concerning the creation of a head cook position. The head cook position would be primarily responsible for taking care of any problems that came about during the time when Ms. Fletcher was not at work. Also, the head cook would be responsible for checking in food received from vendors, performing inventories each month, ordering food, and cooking. When Ms. Fletcher made the suggestion to Mr. Rice concerning the creation of the head cook position, she intended to continue to function as the food service manager. Ms. Fletcher suggested to Mr. Rice that the head cook position be offered to all three of the cooks. In September of 1982, the cooks in the kitchen at the respondent hospital were Eddie Melton, Elizabeth Fullwood, and the Petitioner. When Ms. Fletcher offered the head cook position to Ms. Melton, Ms. Melton declined the position. The Petitioner expressed an interest in the position, as did Ms. Fullwood, who had been working at the hospital since August of 1981. Ms. Fletcher decided the best way to choose between the Petitioner and Ms. Fullwood would be to develop a test to determine which employee was more qualified. However, before Ms. Fletcher could develop the test, Ms. Fullwood approached her and informed her that she felt that the other employees in the kitchen would make a racial issue out of her pursuit of the job as head cook. Consequently, Ms. Fullwood withdrew her name from consideration for the head cook position. Ms. Fullwood is a white female. In 1982, all of the other nonsupervisory employees in the hospital kitchen were black. Ms. Fletcher then offered the head cook job to the Petitioner, who accepted the job. The Petitioner served as the head cook for only a very few days. After working as head cook for just a very few days, the Petitioner informed Ms. Fletcher that she did not feel that the job was worth the money she was to be paid and that Ms. Fletcher could have the job back. Upon the Petitioner's relinquishment of the head cook position, Ms. Fletcher approached Ms. Fullwood, the only remaining cook who had expressed an interest in the head cook position, and offered her the job. Ms. Fullwood still had reservations about accepting the job and spoke to the Petitioner to ensure that there would be no "hard feelings" if Ms. Fullwood were to accept the job. Having determined that there would be no hard feelings, Ms. Fullwood accepted the position of head cook on or about October 1, 1982. At this time, Ms. Fletcher still intended to continue to function as the hospital's food service manager. In mid-October of 1982, Ms. Fletcher experienced some domestic problems which resulted in her giving notice that she would be quitting her employment at the hospital. Her last day of employment was October 29, 1982. Because of Ms. Fletcher's notice that she would be leaving, it became incumbent upon Mr. Rice to hire a food service manager. The Florida Department of Health and Rehabilitative Services license standards for hospitals require a designated food service manager. Mr. Rice initiated the process of selecting a new food service manager by informing Cathy Fox, Ms. Fletcher's replacement as consulting dietician, that the hospital was required to hire a food service manager. At the same time, Mr. Rice asked Ms. Fox to draft a new job description for the position of food service manager. Mr. Rice wanted to upgrade all the job descriptions at the hospital for purposes of satisfying the Joint Commission on Accreditation. Joann Robinson, personnel director at Nassau General at that time, also had input into the drafting of the job description. The job description Ms. Fox developed required that the food service manager be: high school graduate with at least 2-3 years management experience in food service, or a 2 year food service technology course plus one year experience in food service management, or a 4 year college degree in Institutional Food Service Management. Mr. Rice also contacted Danny Bellford at the Job Corps and asked Mr. Bellford to recommend local people for the job of food service manager. The Job Corps sent two candidates for the position of food service manager to the hospital. Ms. Fox interviewed these two individuals and determined that neither of them was qualified. It was common knowledge throughout the hospital in mid-October 1982 that the position of food service manager was available. Ms. Fullwood, head cook at that time, approached Mr. Rice in his office and informed him that she was interested in the position. The Petitioner also expressed an interest in the position during a conversation held with Mr. Rice in the cafeteria. Thus, the two candidates from whom a food service manager would be selected were Ms. Fullwood and the Petitioner. Ms. Fox made the recommendation that Ms. Fullwood receive the position of food service manger. Mr. Rice accepted Ms. Fox's recommendation of Ms. Fullwood based upon his review of both the Petitioner's and Mrs. Fullwood's applications and Ms. Fullwood's superior qualifications. Upon comparing Ms. Fullwood's qualifications to the Petitioner's qualifications, it was obvious that Ms. Fullwood was clearly the better qualified candidate. Ms. Fullwood met all of the requirements in the job description. The Petitioner did not meet all of those requirements because the Petitioner did not have a high school diploma and did not have any management experience in food service. Ms. Fullwood had a GED certificate, had five years of experience as an assistant manager supervising three employees in a school food service position, and had successfully completed numerous courses regarding food service and food service management. At most, the Petitioner completed only one course related to her job, even though given opportunities to take other courses. In light of the superior qualifications of Ms. Fullwood, Mr. Rice approved Ms. Fox's recommendation of Ms. Fullwood for the position of food service manager. Mr. Rice did not consider the Petitioner's race at any time in his decision to select Ms. Fullwood for the food service manager position. There is no persuasive evidence of any improper motivation in the selection of Ms. Fullwood rather than the Petitioner. Since the selection of Ms. Fullwood for the position of food service manager, the Petitioner has made no effort to obtain other employment in a supervisory position in any type of institutional food service facility.
Recommendation For all of the foregoing reasons, it is recommended that the Petition in this case be dismissed and that the relief sought by the Petitioner be denied. DONE AND ENTERED this 11th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3625 The following are my specific rulings on all findings of fact proposed by all of the parties. Findings proposed by the Petitioner (The paragraphs of the Petitioner's proposed findings are not numbered. The ordinal numbers below correspond to the order of the paragraphs, with each indentation of the text of the proposals being treated as a new paragraph. For convenience, page numbers are also included.) First paragraph (page 1): First sentence rejected as statement of position rather than proposed finding of fact. Second, third, and fourth sentences rejected as subordinate and unnecessary details. Fifth sentence accepted. Sixth and seventh sentences rejected as subordinate and unnecessary details. Eighth and ninth sentences rejected as not supported by competent substantial evidence or contrary to the greater weight of the evidence. Second paragraph (page 1) : First three sentences accepted. Last sentence rejected as not supported by competent substantial evidence and, as in any event, irrelevant to the issues in this case. Third paragraph (pages 1-2): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Third sentence accepted in substance. Fourth sentence rejected as not supported by competent substantial evidence and as, in any event, irrelevant to the issues in this case. Fourth paragraph (page 2): Accepted. Fifth paragraph (page 2): Accepted in substance, with clarifying details added and editorial comments omitted. Sixth paragraph (page 2): Accepted in substance. Seventh paragraph (page 2): Accepted. Eighth paragraph (page 2): Accepted in substance. Ninth paragraph (page 3): First two sentences accepted in substance. Third sentence rejected as irrelevant because this was a "head cook" position, not a food service manager position. Last sentence rejected as unnecessary editorial comment. Tenth paragraph (page 3): First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as irrelevant. Eleventh paragraph (page 3): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Parenthetical sentence accepted in substance. Last sentence rejected as not supported by persuasive competent substantial evidence. Twelfth paragraph (page 3): Rejected as unnecessary argument or editorial comment rather than proposed findings. To the extent it constitutes proposed findings of fact, it is cumulative and unnecessary. Thirteenth paragraph (page 3): Rejected as irrelevant to the issues in this case. Fourteenth paragraph (page 4): First sentence accepted, but in context with additional information about Fullwood's employment history. Second sentence rejected because it contains details contrary to the greater weight of the evidence. Fifteenth paragraph (page 4): First sentence rejected because it contains details contrary to the greater weight of the evidence. Second sentence rejected as irrelevant. Third sentence rejected as not supported by competent substantial evidence. Last four sentences rejected as procedural details. Findings proposed by Respondent Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in substance, with numerous unnecessary details omitted. Paragraph 4: Rejected as irrelevant to disposition of the issues in this case. Paragraphs 5, 6, 7, 8, 9, 10, and 11: Accepted. Paragraph 12: Rejected as unnecessary details. Paragraphs 13, 14, 15, 16, 17, 18, and 19: Accepted. Paragraphs 20, 21, 22, and 23: Accepted in substance, with numerous subordinate details omitted. Paragraph 24: Accepted. Paragraph 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted. COPIES FURNISHED: Calvin Moore, Esquire 619 South 10th Street Fernandina Beach, Florida 32034 Mr. Johnell Preliou, President National Association for Advancement of Colored People Nassau County Branch Post Office Box 403 Fernandina Beach, Florida 32034-0403 Patrick D. Coleman, Esquire James M. Craig, Esquire Coffman, Coleman, Andrews & Grogan Post Office Box 40089 Jacksonville, Florida 32203 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact The Hearing Officer entered his Recommended Order on February 28, 1980. A copy of the Recommended Order of the Hearing Officer, including his Findings of Fact, is fully set forth in the appendix of this Order. On March 19, 1980, the Executive Director, Intervenor herein, filed his exceptions to the Hearing Officer's Recommended Order. Petitioner subsequently joined in and adopted the Intervenor's exceptions. On April 11, 1980, Respondent Leon County School Board filed its response to Intervenor's exceptions. Briefs and supporting legal memoranda were also filed by the parties. On April 21, 1980, the oral argument was held on the exceptions to the Hearing Officer's Recommended Order and the response thereto. Having reviewed the transcript of the proceedings, and having considered the exceptions, briefs and oral arguments of the parties, we find that the Hearing Officer's Findings of Fact are supported by competent, substantial evidence of record and are hereby adopted by this Commission as its Findings of Fact and are incorporated herein. II CONCLUSIONS OF LAW Unlawful Employment Practice. Section 23.167, Florida Statutes, provides in pertinent part, as follows: 23.167 Unlawful employment practices: remedies; construction. -- (1) It is an unlawful employment practice for an employer: (a) To . . . fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment, because of such individual's race, color, . . . . * * * (13) In the event that the commission, in the case of a complaint under subsection (10) . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Since the Florida statute is patterned after the federal law on the same subject (Title VII of the Civil Rights Act of 1964), then the Florida statute should be given "the same construction in the Florida Courts as its prototype has been given in the federal Courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the same subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108, 116 (Fla. 1st DCA 1977). The standard of proof applicable in cases of individual actions involving disparate treatment is as delineated by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792(1973). Under McDonnell Douglas and subsequent cases, the Petitioner bears the initial burden of establishing a prima facie case of racial discrimination by showing: (1) that she belongs to a protected class (racial minority); (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that despite her qualifications, she was not hired (promoted); and (4) the employer hired/promoted a Caucasian for the job prior to the published closing date for the position. It is clear, from McDonnell Douglas, that Petitioner "carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1977). To dispel the adverse inference from the petitioner's prima facie case, the burden then shifts to the employer. The employer then must articulate some legitimate, non-discriminatory reason for not hiring or promoting the petitioner. McDonnell Douglas v. Green, Supra, at 802. Finally, the petitioner is required to rebut the employer's stated reason for failure to hire or promote by showing that the employer's alleged non- discriminatory motive is in fact a pretext. Furnco Construction Corp. v. Waters, Supra, at 578. In order for the Petitioner to prevail in this case, she must convince the Commission by a preponderance of the evidence that Respondent's failure to hire/promote her to the Food Service Worker- 5 1/2 hour position was based on the fact that she is black, rather than any legitimate non-discriminatory reason. There is substantial competence evidence in the record to support the Commission's conclusion that Ms. Hargis established a prima facie case. Petitioner is the only black food service worker employed at Fairview Middle School. Petitioner was qualified for the position she sought and had more seniority than the white female chosen for the position. She was the only person who sought to make formal application for the vacancy listing which appeared in the Leon County School's September 5, 1978, Job Opportunities Bulletin. When she attempted to make formal application for the position, she was informed that the position had already been filled. Petitioner's formal application was effectively frustrated and would have been futile at that point. Despite her superior past record of performance as a food service worker, Petitioner was neither advised of the vacancy nor permitted to apply, so that Respondent might promote/hire Mrs. Minnie Barfield, a white female, for the position. Therefore, Petitioner's establishment of a prima facie case raises an inference that Respondent's failure to hire/promote her was racially premised. The Respondent seeks to rebute Petitioner's prima facie case by articulating as its legitimate, non-discriminatory reason for not hiring/promoting Mrs. Hargis, to a lack of coordination and communication in advertising the vacancy, between the Central Kitchen and the Dining Hall manager at Fairview Middle School, who was also responsible for making the final employment decision. Respondent also places great reliance on an informal October, 1977, meeting in which Petitioner indicated that she was unable to assume the additional hours of the 5 1/2 hour position, for various personal reasons at that time. It is undisputed that Respondent failed to comply with its existing collective bargaining agreement in filling the vacancy that Petitioner sought. The contract requires that existing employees be considered for a vacancy before a decision on employment is reached. Upon being informed that the advertised position vacancy had already been filled, Mrs. Hargis complained to the Fairview Middle School principal on or about September 11, 1978, prior to the announced closing date for the position. The principal took no positive actions to correct an obvious error, but instead informed Petitioner that if she was not satisfied with the situation, she could check with Mrs. Linton, the Director of School Food Service. Mrs. Linton is the same management official who had already filled the Food Service Worker position by hiring/promoting the white employee with less seniority than Petitioner. In light of these substantial procedural irregularities in the filling of this position, Respondent asserts that although its procedures and collective bargaining agreement may not have been properly complied with in this case, its actions were not motivated by discriminatory intent. There is no direct evidence of discriminatory intent in the instant case, and such evidence is seldom present. Therefore, circumstantial evidence, or inferences, may be relied upon to establish discriminatory motive. Page v. Bolger, 21 EPD paragraph 30,500 (4th Cir. 12/19/79), citing the U.S. Court decisions in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335, n. 15 (1976), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). The ultimate inquiry, in examination of the issue of discriminatory intent, is whether the decision or action in question was racially premised, i.e., was it a cover-up for a racially discriminatory purpose. B. Schlei and P. Grossman, Employment Discrimination Law, 1153-1154 (1976). An examination of the totality of the circumstances in this case leads this Commission to the conclusion that the Respondent's stated reasons of error and negligence in its failure to promote/hire the Petitioner for the Food Service Worker-5 1/2 hour position are merely a pretext for racial discrimination against Mrs. Hargis. It is beyond question that Petitioner was thoroughly qualified for the position sought. The procedures utilized by Respondent to fill this position afford too much opportunity for subjective evaluation by a single supervisor with no clear standards for making crucial employment decisions. Mrs. Linton entirely controlled the promotion/hiring process in this case. The vacancy was filled prior to the proper posting of notices and without complying with Respondent's collective bargaining agreement. Such procedures must be subjected to close scrutiny by this Commission. Respondent had ample opportunity to remedy its actions, but failed to take any corrective measures. Instead, Respondent simply suggested that Petitioner contact the very individual who had committed the unlawful employment practice in the first instance. It can only be concluded that Respondent knew of the racially discriminatory impacts of its decision and that Respondent sought to cover-up its unlawful activity by posting of vacancy announcements after the employment decision had been made. As the United States Supreme Court noted in Local 189, Papermakers & Paperworkers v. United States, 416 F.2d 980, 997 (5th Cir. 1969), cert. denied 397 U.S. 919 (1970), "the conduct engaged in (here) had racially-determined effects. The requisite intent may be inferred from the fact that the (respondents) persisted in the conduct after its racial implications had become known." Section 23.167 requires no more. In summary then, the Commission finds that the Respondent unlawfully discriminated against the Petitioner on account of her race by failing to hire/promote her to the position of Food Service Worker-5 1/2 hours, and instead promoted a white person, in violation of Section 23.167(1), Florida Statutes. Admissibility of Executive Director's Determination. On page 2 of his Recommended Order, the Hearing Officer notes that: "At the hearing, the Intervenor sought to introduce in evidence the Executive Director's Determination: Cause, issued August 31, 1979, under the public records exception to the hearsay rule, pursuant to Section 90.803(8), Florida Statutes. After having considered post-hearing submissions filed by the parties, the Hearing Officer ruled that the Executive Director's Determination was: received in evidence as a public record exception to the hearsay rule solely for the purpose of establishing the fact that the (Executive Director) complied with pertinent rules of the Commission in processing this case, but not for the truth of the matters contained in the summary of the investigation or the validity of the (Executive Director's) findings therein. We reject this conclusion of the Hearing Officer. It is well settled in Florida that the contents of public records may be introduced as an exception to the hearsay rule. Smith v. Mott, 100 So. 2d 173 (Fla. 1959); Wilkerson v. Grover 181 So. 2d 591 (Fla. 3d DCA 1965). All that Florida law requires is that the reporting be made pursuant to law, Bell v. Kendrick, 25 Fla. 778 6 So. 868 (1889), and that the document be credible and trustworthy. Smith v. Mott, supra. As the court in Mott held, "the secondary character of the evidence . . . only affects the weight to be accorded it and not its competency." We also conclude that the Determination is admissible "for the purpose of supplementing or explaining other evidence even though it may not be sufficient in itself it support a finding." Section 120.58(1)(a), Florida Statutes; Pasco County School Board v. PERC, supra. This Commission concludes, as did the Fifth Circuit Court of Appeals in Smith v. Universal Services, Inc., 454 F 2d 154, 4 FEP Cases 187 (5th Cir. 1972), that the Determination is admissible as it tends to ease the agency's fact-finding burden. However, the fact-finder is not bound by the findings in the Determination and it is to be given no more weight than any other evidence or testimony received at the hearing. No due process violation occurs as a result of the admission of the Determination. Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979); Pantechenko v. C.B. Dolge Co., 18 FEP Cases 686 (D.C. Conn. 1977). The Executive Director's Determination, consisting of a summary of the allegations of discrimination, a brief summary of the facts developed in the investigation, and the Executive Director's finding of reasonable cause to believe that a violation of the Human Rights Act has occurred, is analogous to other reports admissible under Section 90.803(8) and (6), Florida Statutes. See Smith v. Mott, supra; Wilkerson v. Grover, supra, (admitting hospital records). The report was prepared in the regular course of the Executive Director's duties and in accordance with Section 23.166(5), Florida Statutes, and Rule 9D- 9.04(2), Florida Administrative Code. In view of the general presumption under Florida law that public officials perform their duties in accordance with law, and the absence of any evidence to the contrary, the Determination of the Executive Director is admissible in evidence. Hillsborough County Aviation Authority v. Taller and Cooper, 245 So. 2d 100 (Fla. 2d DCA 1971). In reaching this conclusion, we have not considered and do not have decide whether the Investigatory Report, upon which the Determination is based, is admissible. See Gillin v. Federal Paper Board Co., 52 FRD 838, 2 FEP Cases 507 (D.C. Conn. 1979), aff'd 479 F.2d 97, 5 FEP Cases 1094 (2d Cir. 1973), where the EEOC Determination was admitted in evidence while the rest of the investigatory materials were excluded. In their exceptions to the Recommended Order, Intervenor and Petitioner assert that the Hearing Officer's Conclusions of Law re in error and should not be adopted by the Commission. To the contrary, Respondent asserts that the Hearing Officer's Conclusions are correct and should be upheld. Having fully considered the exceptions and briefs of the parties, as well as the Conclusions of Law reached by the Hearing Officer, in view of the foregoing Conclusions reached by the Commission, those portions of said exceptions and Recommended Order not incorporated in this Order are deemed to be unnecessary, irrelevant or unwarranted in law or fact, and are rejected. Having considered all of the foregoing, it is therefore ORDERED AND ADJUDGED: Petitioner shall be promoted by Respondent to the Food Service Worker-5 1/2 hour position at Fairview Middle School, or to an equivalent position within the Leon County School System that is within a reasonable convenient commuting distance for Petitioner; such promotion to be retroactive to September 12, 1978, and to take place no later than August 1, 1980. Petitioner shall receive from Respondent back pay equivalent to the salary she would have been paid in the position for the period which she has been illegally denied employment; such back pay to be reduced by the amount of income Petitioner received from her interim employment with the Leon County School Board. Petitioner is awarded attorney's fees. Petitioner has seven working days from the date of this Order to submit affidavits on attorney's fees to Respondent. Respondent has seven working days in which to respond. Following such response the parties have seven working days in which to negotiate a settlement of the amount to be awarded. If, at the end of the seven-day negotiation period, the parties have been unable to reach settlement amount, Petitioner shall immediately file a notice of failure of settlement with the Clerk of the Commission requesting that an evidentiary hearing be set on the award of attorney's fees. It is so Ordered: Dated this 29th day of May, 1980. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS Reese Marshall, Commission Chair Florida Commission on Human Relations FILED this 29th day of May, 1980, at Tallahassee, Florida. BY: Sondra J. Anderson Acting Clerk of the Commission
Recommendation That the complaint and petition herein be dismissed by the Florida Commission on Human Relations. DONE AND ENTERED this 28th day of February 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ralph Armstead, Esquire Legal Service of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida Reese Marshall, Chairperson Florida Commision on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301 Charles A. Johnson, Esquire Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Aurelio Durana, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the administrative complaints dated July 8, 2015, and September 30, 2015; and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: The Division is the state agency charged with regulating public lodging and public food service establishments pursuant to chapter 509. At all times material hereto, Respondent was licensed as a public food service establishment in the state of Florida by the Division. Pet. Ex. 1. The Division's first witness, Inspector Audain, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Audain has worked for the Division for approximately ten years as an inspector. Prior to working for the Division, Audain worked in the food industry as a managing partner at a restaurant in New York. Upon gaining employment in the Division, Audain was trained on the Food Code and the laws and rules pertaining to public food service establishments and public lodging establishments. Audain is also a certified food manager. Audain receives continuing education and training on a monthly basis. Audain performs more than 700 inspections each year. The Division's second witness, Inspector Howard, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Howard has worked for the Division for approximately one and one- half years. Prior to working for the Division, Howard worked in the food industry as an executive chef at a Hilton Hotel in Tampa, a chef at a W Hotel in South Beach, and a chef at Los Hotel in South Beach. Upon gaining employment in the Division, Howard was trained on the Food Code and on the laws and rules pertaining to public food service establishments and public lodging establishments. Howard is also a certified food manager. Howard receives continuing education and training on a monthly basis. Howard performs approximately 800 inspections each year. "Basic Item" means an item defined in the Food Code as a Core Item. Fla. Admin. Code R. 61C-1.001(5) (January 1, 2013). "Basic violation" means a violation of a basic item, as defined in Florida Administrative Code Rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to general sanitation and does not meet the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "Intermediate violation" means a violation of an intermediate item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to specific actions, equipment, or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "High priority violation" means a violation of a high priority item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, determined by the Division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of rule 61C-1.005. DBPR Case No. 2015-029646 On July 1, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report setting forth the violation she encountered during the inspection. Pet. Ex. 2. On July 1, 2015, Audain notified Respondent of the cited violation. Ricardo Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 2. During the inspection on July 1, 2015, Audain observed roach activity present as evidenced by eight live roaches found crawling on the floor in the food service area, three live roaches crawling on the fryer in the kitchen, three live roaches found by the water heater in the kitchen, two live roaches found between the hose from the water heater and the wall, two live roaches found underneath the kitchen prep table, at least six live roaches found in the air conditioner closet, one live roach crawling on the wall next to the refrigerator, five live roaches crawling on the reach-in cooler by the door to the front service area, and one live roach crawling on the wall in the front service area of the establishment. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. Pet. Ex. 2. As a result of these observations, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency order was issued on the same date as the inspection, July 1, 2015. Pet. Ex. 7. DBPR Case No. 2015-042510 On July 16, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During this inspection, Audain prepared and signed an inspection report setting forth the violations she encountered during the inspection. Pet. Ex. 3. On July 16, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by July 17, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 3. On July 17, 2015, Howard performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Howard prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, inspection report had not been corrected. Pet. Ex. 4. On July 17, 2015, Howard notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 1, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 4. On September 2, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, and July 17, 2015, inspection reports had not been corrected. Pet. Ex. 5. On September 2, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 3, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 5. On September 3, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015; July 17, 2015; and September 2, 2015, inspection reports had not been corrected. Pet. Ex. 6. The first violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. Audain observed employees engaging in food preparation without proper hair restraints. This is a violation because hair can be both a direct and indirect vehicle for contamination. Food employees may contaminate their hands when they touch their hair. Proper use of a hair restraint keeps dislodged hair from ending up in the food and may also deter employees from touching their hair. The Food Code defines the governing requirement for the first violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3, 5-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 367; Fla. Admin. Code R. 61C-1.005(5)(c). The second violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed equipment in poor repair as evidenced by a freezer chest door having filament (insulation) exposed. This is a violation because failure to properly maintain equipment could lead to violations of the associated requirements of the Food Code that place the health of the public at risk. Refrigeration units in disrepair may no longer be capable of properly cooling or holding potentially hazardous (time/temperature control for safety) foods at safe temperatures. The Food Code defines the governing requirement for the second violation as a Core Item. The Division has designated Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 460; Fla. Admin. Code R. 61C-1.005(5)(c). The third violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. During the July 16, 2015, inspection, Audain observed roach activity present as evidenced by four live roaches found nestled in crevices by the air conditioner in the kitchen and one live roach crawling on the floor in front of the reach-in cooler between the kitchen and front service area. During the September 2, 2015, inspection, Audain observed one live roach crawling on the kitchen floor. Audain also observed one dead roach in the dining room freezer and one dead roach near the kitchen door during her inspection on September 3, 2015. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. The Division properly designated this violation as a high priority violation. Pet. Ex. 3, 5-6; Fla. Admin. Code R. 61C-1.005(5)(a). The fourth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed outer openings to the establishment not protected as evidenced by a rear door which was not self-closing. This is a violation because the presence of insects and rodents (which may transmit bacteria and disease to food) is minimized by protecting and securing outer door openings to the food establishment. The Food Code defines the governing requirement for the fourth violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, pp. 485-486; Fla. Admin. Code R. 61C-1.005(5)(c). The fifth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the manager's food manager certification upon request. This is a violation because managers are required to pass an approved food manager certification course and test which ensures managers have a higher level of knowledge regarding sanitation and food handling, preparation, and storage. Lack of the required knowledge can result in breakdowns in these processes. The Division has designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). The sixth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the employees’ required state-approved employee training. This is a violation because employees of restaurants are required to have basic food safety training, which imparts knowledge of basic food handling skills, including proper glove use, procedures for food temperatures and hot/cold holding, cooking temperature requirements, and basic sanitation measures, such as personal hygiene and hand-washing. Lack of this knowledge can result in a breakdown in these processes, possibly leading to food-borne illness or unsanitary conditions. The Division properly designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). Respondent had one Emergency Order of Suspension of License and Closure filed with the agency clerk by the Division within the 12 months preceding the date the current administrative complaints were issued. The Emergency Order of Suspension of License and Closure was filed on July 7, 2015. Pet. Ex. 7.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, ordering Latchman's Seafood Market and Grill, Inc., d/b/a Latchman's Seafood Market and Grill, Inc., to pay an administrative penalty in the amount of $500.00 for the violation listed above in DBPR Case No. 2015-029646 and an administrative penalty in the amount of $1,650.00 in DBPR Case No. 2015-042510, for a total administrative penalty of $2,150.00, plus any applicable and authorized investigative expenses or costs, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date of the final order. DONE AND ENTERED this 5th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2016.
