The Issue Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the Code. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance requirements that does not meet the level of a high priority or intermediate violation. Count 1 Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections. Counts 2 and 3 The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection. Count 5 The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor to the shelves. The assertion was not supported by credible evidence. Count 6 The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code. Count 9 (Part A) The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation. Counts 10 and 12 The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees." During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink. Count 10 identified the hot water deficiency as an intermediate violation. Count 12 classified the accessibility deficiency as an intermediate violation. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection. Count 11 The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device was present. This deficiency was classified as a high priority violation. Count 13 The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation. Count 15 The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $6,900 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of April, 2014.
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of discrimination based upon his race and upon retaliation regarding his termination (lay-off) from employment with the Respondent and with regard to his allegation that he was denied overtime by the Respondent.
Findings Of Fact The Petitioner was a laborer and carpenter's helper for the Respondent, a construction company, at times pertinent to this case. The two construction projects involved in this proceeding are known as the Oceans Grande Project, a 20-story high rise condominium in Daytona Beach Shores and the Salida Del Sol project in Daytona Beach Shores. The first was commenced in construction in January 2004, and the Salida project in December 2004. They are still ongoing. Sometime in 2004 the Petitioner applied at the Respondent's Oceans Grande worksite asking for a wage rate of $14.00 per hour. He filled out an application and left and had no more contact with the Respondent employer for two or three months. He returned after that period of time and spoke with Grady Johnson, the project superintendent for the Respondent. He ultimately took a job at $12.00 per hour with the Respondent as a carpenter's helper/laborer. He was thus employed initially at the Oceans Grande project. The Petitioner was employed at that location from June 21, 2004 until early March 2005, when he was transferred to the Salida Del Sol project. Prior to that transfer, in November 2004, at the Oceans Grande site the Petitioner suffered an on- the-job injury. He was provided medical care by the Respondent, and had been placed on light duty by his physician. In early March 2005, the Oceans Grande project no longer had any light duty work available. It was the understanding of the superintendent, Grady Johnson, that at all times after November 15, 2004, the Petitioner had been on light duty status. He was aware of three specific letters that the company received from the physician. The latest one, advising that the Petitioner must remain on light duty, was received in March according to Mr. Johnson; however, rather than lay-off the Petitioner, the Respondent transferred the Petitioner to the Salida Del Sol project. That project was just getting underway at that time and light duty work was available. Two other employees were also transferred to that project. Thus, the Petitioner's employment at Salida Del Sol consisted of light duty work. Superintendent Getz of that project re-affirmed that the transfer to his project was because of a lack of a need for one such as the Petitioner on light duty at the Oceans Grande project, as well as the fact that his project at this time had light duty work. The transfer to the Salida Del Sol project occurred on March 7, 2005. At the time of the Petitioner's transfer to the Salida job site there were only two Yates employees, including the Petitioner, who were employed there, aside from supervisory personnel. On or about April 12, 2005, an employee of a subcontractor referred to the Petitioner with a racial slur, and made other unkind, argumentative comments toward him. The Petitioner made no mention of it initially, but on the very next day was working in that area and realized that one of the female employees was quite angry because of her awareness of the racially derogatory comment that the subcontractor's employee had made toward the Petitioner. This co-employee made a complaint about the matter to Rick Getz, the project superintendent at the Salida job. Mr. Getz immediately investigated the matter and confronted the employee of the subcontractor ("Dominick") and told him in no uncertain terms that such conduct was not to be tolerated on that job, regardless of whom he worked for. Subsequently Mr. Getz, along with the assistant project superintendent Rick Bilodeau, met with the subcontractor's employee, Dominick, as well as his employer and reiterated to both of them that this type of conduct would not be condoned and there would be no further incidents like this. There were no more complaints thereafter by the Petitioner or any other employee of the Respondent. In a conversation shortly after this meeting, Mr. Bilodeau informed the Petitioner that the matter had been resolved, at which point the Petitioner made a statement to the effect that he wanted to know the name and address of Dominick's employer because "my people like people with big mouths and lots of money." In any event, the Respondent's action remedied the situation and stopped any further racially derogatory incidents. The Petitioner has also complained of being denied overtime. This stems from Friday, April 29, 2005, when the Petitioner learned that the other two employees on his job site were going to work overtime the next day, Saturday. He claims he knew nothing about it and was not told by his employer and concluded therefore that he was denied overtime. The Respondent, however, offered preponderant evidence that there was overtime available on Saturday April 30, 2005, and that no effort had been made to exclude the Petitioner. Rather, overtime is voluntary and because of the small number of employees superintendent Getz had announced to all employees near the end of the workday on Friday that work was available for anyone who wanted to work on Saturday. It was Mr. Getz's impression that this had been made known to the Petitioner, but if the Petitioner had not heard the announcement at a gathering at the end of the day, it was not through any intentional effort by the Respondent to exclude him from an overtime opportunity. This was confirmed by Assistant Superintendent Billodeau in his testimony to the effect that it was customary on the job site on Friday to announce to everyone congregated in the afternoon whether they were going to work on Saturday or not. It was Billodeau's impression also that the Petitioner was present on that occasion. So all employees were told as a group that there was work to be done on Saturday. It is also true that numerous occasions had arisen on this and the Oceans Grande project in which the Petitioner was asked to work overtime but declined for various reasons, as the Petitioner himself has conceded. Finally, the Petitioner complains concerning his lay- off from the Oceans Grande project on May 6, 2005. In fact, efforts were made to avoid laying the Petitioner off, and to find him available work at the Salida project. Additional efforts were also made to contact the Petitioner for re-call purposes even after he was laid-off from the Oceans Grande project. This belies any intention on the part of the Respondent to retaliate against the Petitioner for complaining about the racial comment incident by denying him overtime or laying him off. On May 2, 2005, the Salida Del Sol project had reached a stage in which there was very little work to do. The project was waiting for a work permit and for the installation of a tower crane. Therefore there was no work for a laborer, the Petitioner, or for the two carpenters, Felix Hernandez and Otillo Toledo. Rather than lay them off, however, Superintendent Getz called the project Superintendent, Mr. Johnson, at the Oceans Grande project to see if there was any work for the three employees. Mr. Johnson told him that he might have work for perhaps a week and therefore the Petitioner and the other two employees were transferred to the Oceans Grande project. Both Hernandez and Toledo were skilled carpenters, as opposed to the Petitioner, who was a laborer/carpenter's helper. When this transfer occurred it left only two traffic control employees, who were females, at the Salida job site, along with the tower crane operator. On May 6, 2005, the Petitioner was laid-off from the Oceans Grande project. There was simply no further work for a laborer at that job site so Mr. Mecker, the foreman, explained to the Petitioner why he was laid-off. He also told him that the company might soon have another project starting known as the Halifax Landing project and that he might have work available there. He told the Petitioner that he should remain in contact with the Oceans Grande project supervisory personnel in case a re-call came up because of additional work becoming available. The Respondent also noted in the Petitioner's personnel file at the time of this "reduction in force" that the Petitioner was "recommended for re-hire." Mr. Johnson also testified that as far as he was concerned the Petitioner was still eligible for re-hire and that he actually liked Julian Lawrence as a person and as an employee. It is undisputed, however, that the Petitioner never contacted the Respondent and never made any inquiry as to additional work. On occasion, Project Superintendent Johnson made efforts to call the Petitioner at the only phone number he had for him, regarding re-calling him for more work. This was probably three to four weeks after the lay-off. The fact that the Respondent noted on the personnel record at the time of his lay-off that the Petitioner was recommended for re-hire belies any indication that the Petitioner was being retaliated against by the Respondent. It also significant that the decision-maker with regard to the lay-off was Grady Johnson. The Petitioner maintains that he was laid-off in retaliation for complaining about the racial epithet incident involving "Dominick" at the Salida project. Mr. Johnson however, was totally unaware of that incident at the time he made the decision to lay the Petitioner off. Thus it was not possible that he did so as an act of retaliation. Indeed the Petitioner himself did not complain regarding the racial comment incident, but rather learned of it from the female employee who had made the complaint to the Respondent's management. Equally significant, no derogatory employment action was ever taken against the female employee who complained to the Respondent regarding the incident either. Project Superintendent Johnson established, based upon his 45 years experience in the construction industry, that it is important to understand how a construction project and company operates. There are different steps and different stages. During these different steps and stages of a project different employees are required and then become un-needed at a later stage of the project. Many times much of the work at various stages is performed by subcontractors. Additionally, it is important to acknowledge that not only was Mr. Johnson unaware of the "Dominick" incident, but when asked if the lay-off of the Petitioner was in any degree an effort, to retaliate, Mr. Johnson was very adamant in denying that. He stated, "I've never done that in my life." Indeed, the testimony shows that on at least two occasions the Respondent sought to find available work for the Petitioner rather than lay him off. Mr. Johnson established that the Petitioner's employment record was marked as "eligible for re-hire" and the Respondent's attempts to reach the Petitioner after the lay-off was because the Respondent was actively trying to effect an arrangement so that the Petitioner would have work at different times with the Respondent. In Mr. Johnson's words, "We like Julian. Julian is good guy. There was no selection . . . we were trying to work it out where he could go to the other job, but that didn't work out."
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julian J. Lawrence Post Office Box 263225 Daytona Beach, Florida 32126 Taylor B. Smith, Esquire The Kullman Firm Court Square Tower 200 6th Street North, Suite 505 Columbus, Mississippi 39703-0827 Jennifer Robbins Guckert, Esquire The Kullman Firm 1640 Lelia Drive, Suite 120 Jackson, Mississippi 39216
The Issue The issues to be decided in this case are whether Respondents are liable for the violation charged in Petitioner's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment ("NOV"), whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact 1. Petitioner is the state agency with the power and duty to protect Florida's air and water resources, including wetlands, pursuant to chapters 373 and 403. 2. Respondent Wanda Phillips owned the property located at 13285 Sweet Hill Road, Polk City, Polk County, Florida (“the site") during all times relevant to the charges brought by Petitioner. 3. The site includes wetlands, as defined in Florida Administrative Code Rule 62-340.200(19). 4. Sometime in 2010, Petitioner received a complaint about wetlands being filled on the site. Joseph Drumm, a biologist and Environmental Specialist employed by Petitioner, conducted an inspection of the site on July 20, 2010. 5. Based on aerial photographs, vegetative species in undisturbed areas, observations of soil in and around the disturbed area, hydrologic indicators, and ground elevations in the area, Mr. Drumm determined that approximately .35 acres of wetlands had been filled on the site. 6. On the same date, Mr. Drumm spoke with Respondent Patrick Phillips, who confirmed that fill was placed on the site and that he directed the filling with Wanda Phillip's knowledge and consent. 7. The filling was done sometime in 2007 and was for the purpose of meeting Polk County requirements related to the installation of a septic tank and drain field for a new single- family residence. 8. Respondents did not apply for or obtain a permit from Petitioner before filling the wetlands.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1. Within 30 days of this Final Order, Respondents shall pay $2,000 to Petitioner for the assessed penalties. The payment shall be made by cashier's check or money order payable to the “State of Florida Department of Bnvironmental Protection” and shall include thereon the OGC Case Number 11-0823 and the notation "Ecosystem Management and Restoration trust Fund." The payment shall be sent to the Department of Environmental Protection, Attn: David Brown, 13051 North Telecom Parkway, Temple Terrace, Florida 33637-0926. 2. Within 30 days of this Final Order, Respondents shall pay $1,000 to Petitioner for its investigative costs. The payment shall be made by cashier's check or money order payable to the “State of Florida Department of Environmental Protection” and shall include thereon the OGC Case Number 11-0823 and the notation “Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Department of Environmental Protection, Attn: David Brown, 13051 North Telecom Parkway, Temple Terrace, Florida 33637-0926. 3. Respondents shall comply with the Orders for Corrective Actions set forth in paragraphs 24 through 35 of the NOV, which are adopted by reference herein and made a part of this Final Order. All deadlines stated in the Orders for Corrective Action shall be calculated from the date of this Final Order. DONE AND ORDERED this 6th day of August, 2012, in Tallahassee, Leon County, Florida. Lawl sh BRAM D. E. CANTER 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 6th day of August, 2012. COPIES FURNISHED: Howard Evan Fox, Esquire Department of Environmental Protection Mail Station 35 . 3900 Commonwealth Boulevard Tallahassee, Florida 32399 howard. foxédep.state.fl.us Wanda Phillips Patrick Phillips Post Office Box 1313 Davenport, Florida 33836 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida ‘Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue Whether applicable law authorizes the Division of Administrative Hearings to conduct a hearing on the merits of issuing a permit, where the referring agency issued the permit almost three months before the objectors' petition for hearing was filed?
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER enter a final order dismissing with prejudice the amended petition for formal proceeding under Section 120.7, Florida Statutes, filed by Freeport and STI. DONE and ENTERED this 25th day of September, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William L. Earl Esquire One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 Joe W. Fixel, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John T. Allen, Jr., Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Edward P. de la Parte, Jr., Esquire 403 N. Morgan Street, Suite 102 Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FREEPORT SULPHUR COMPANY, Division of FREEPORT MINERALS COMPANY, and SULPHUR TERMINALS, INC., Petitioner, vs. CASE NO. 78-527 DEPARTMENT OF ENVIRONMENTAL REGULATION, and AGRICO CHEMICAL COMPANY, Respondent. /
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.
Findings Of Fact The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap. There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless." Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.
Recommendation Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00) DONE AND ENTERED this 18th day of March, 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 18th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Lee Utley, Jr., Esquire 331 East Bay Street Jacksonville, Florida 32202 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
