The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
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 finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 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 17th day of October, 2008.
The Issue The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in and around Santa Rosa County, Florida. Respondent employed approximately 190 people. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was involved in an interracial personal relationship with a white man. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
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
The Issue Whether Petitioner committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is the owner of an eating establishment located in Gainesville, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 1102934 issued by the Division. Franklin Regan is a sanitation and safety specialist employed by the Division. His duties include inspecting food service and lodging establishments for compliance with Chapter 509, Florida Statutes. Mr. Regan has a bachelor's degree from Florida State University in hotel and restaurant administration and a degree in ornamental horticulture from the University of Florida. He has been employed by the Department of Business and Professional Regulation for 11 years. Prior to that time, he worked for several years in the field of food service and the public lodging business. He also has received training in laws and rules regarding food service and lodging, as well as fire safety. On November 15, 2002, Mr. Regan conducted an inspection of Respondent's premises, Nature's Table restaurant and issued an inspection report. Mr. Alissa signed for the inspection report. During the November 15, 2002, inspection, Mr. Regan observed a small food preparation unit in the service area to be 54 degrees. He wrote on the inspection report to not use that food preparation unit until it was able to maintain potentially hazardous food at 41 degrees. He noted on the inspection report that the restaurant would be checked within the next 7 days to determine if potentially hazardous food was being maintained at 41 degrees or lower. Mr. Regan also made a notation on his November 15, 2002, inspection report that Respondent needed to submit within 10 days new plans with actual locations of all equipment. He was concerned specifically about the labeling of a preparation sink that had been labeled as a hand sink on Respondent's Application for Plan Review. Mr. Regan conducted another inspection at Respondent's restaurant on November 18, 2002. During that inspection, he observed food temperatures over the required 41 degrees. Specifically, he noted ham at 42 degrees, tuna salad at 45 degrees, and egg salad at 44 degrees. This is a critical violation because bacteria can multiply at a rapid rate in food maintained above 41 degrees. This is potentially hazardous because the bacteria can cause infection if consumed. During the November 18, 2002, inspection, Mr. Regan also observed that potentially hazardous foods were not maintained in wells of a preparation unit at 41 degrees or below. This is potentially hazardous for the same reason as noted in the paragraph above. During the November 18, 2002, inspection, Mr. Regan also noted that no hand towels were provided at a hand sink. This is a violation because improper hand washing can lead to transfer of pathogenic bacteria to food and viruses. As a result of the November 18, 2002, inspection, the inspection report included a warning that the noted violations must be corrected by November 22, 2002. Mr. Regan conducted a call back or re-inspection on November 25, 2002. During that re-inspection, he observed three deficiencies that were not corrected from the November 18, 2002, report: that sliced turkey was at 48 degrees and egg salad was at 46 degrees; that the prep unit was not maintaining potentially hazardous food in wells at 41 degrees or lower; and that hand towels were not provided at the front hand sink. During the re-inspection conducted on November 25, 2002, Mr. Regan also noted on his written report that Respondent had not submitted plans with actual locations of equipment as he had requested in his first inspection report dated November 15, 2002. Mr. Alissa offered mitigating circumstances regarding some of the deficiencies noted by Mr. Regan. Regarding the allegation of failure to keep food at an appropriate temperature, Mr. Alissa asserted that he and his employees use a method called "time-in-lieu" to overcome the temperature problem with refrigeration units being opened and closed. Mr. Alissa described two charts in the restaurant regarding the time-in-lieu procedure used in his restaurant. The charts are located next to refrigeration units and state the time the food is put in a refrigeration unit and the time the food is removed. The chart next to the large sandwich unit has columns and rows referring to various potentially hazardous foods, the times the foods were placed in the sandwich bar, and the time the foods should be removed or thrown away. Mr. Alissa has had this procedure in place since Mr. Regan's second inspection. Mr. Alissa's testimony in this regard was detailed including the exact locations of the charts in his restaurant. His testimony in this regard is accepted as credible. However, Respondent's written policy or procedure of using time-in-lieu is not in evidence. When a restaurant uses the time-in-lieu procedure, it must have a written policy establishing the time food was removed from the refrigerator so a person would know when the food has to be used, cooked, or destroyed. The written procedure must be available to the food inspector. Mr. Regan does not recall seeing these charts or any other documentation demonstrating that the time-in-lieu procedure was in place. Respondent did not offer any evidence of mitigation regarding the allegations concerning lack of hand drying provisions or of failure to submit revised plans of the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Hotels and Restaurants enter a final order which confirms the violations found, imposes an administrative penalty in the amount of $1,000.00, and requires Respondent to attend a Hospitality Education Program and to provide proof of such attendance to the Division. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jamil Alissa 6419 West Newberry Road, No. G3 Gainesville, Florida 32605 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
