The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, which operates a restaurant, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At one time, Respondent Sonimar, Inc., d/b/a El Condor Pasa ("Sonimar"), held a Permanent Food Service license. This license expired, however, on December 1, 2005. Thereafter, Sonimar continued to operate a food service establishment without a valid license, and was doing so at all times relevant to this case. Sonimar is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"). On two occasions——June 7, 2006, and July 26, 2006——an agent of the Division inspected a restaurant located at 953 Rock Island Road in North Lauderdale, Florida, which establishment was then (and at the time of the hearing) operated by Sonimar. During each visit, the inspector noticed several items that were not in compliance with the laws which govern the facilities and operations of restaurants. As of July 26, 2006, the following deficiencies subsisted: (1) chlorine sanitizer was not being used to clean food contact surfaces and utensils, in violation of Food Code Rule 4-501.114(A)i; (2) ready-to-eat, potentially hazardous food had been held more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17; (3) the operator of the establishment was not licensed, in violation of Section 509.241(2), Florida Statutesii; (4) some ceiling tiles in the kitchen had water stains (evidencing a leak) and there was a visible hole in the kitchen ceiling, in violation of Florida Administrative Code Rule 61C-1.004(6); (5) the door of the walk- in freezer and the floor of the walk-in cooler were in disrepair, in violation of Food Code Rule 4-501.11; and (6) the plumbing located above the three-compartment sink was leaking, in violation of Food Code Rule 5-205.15.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Sonimar guilty in accordance with the foregoing Recommended Order; (b) ordering Sonimar to pay an administrative penalty in the amount of $2,800, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 calendar days after the filing of the final order with the agency clerk; and (c) directing Sonimar to send an appropriate principal to an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 8th day of August, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2007.
The Issue The issues are as follows: (a) whether Petitioner's April 27, 1998, Charge of Discrimination states a cognizable claim under Sections 760.01 - 760.11 and 509.092, Florida Statutes; and if so (b) whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age, race, and/or gender.
Findings Of Fact Petitioner is a black female who is over 60 years old. According to her 1992 résumé, she earned a general education diploma at Haney Vocational Technical Center, in Bay County, Florida in 1981. Petitioner's résumé states that between 1981 and 1984, she completed thirty semester hours in hotel/motel restaurant management at Gulf Coast Community College, in Bay County, Florida. At the hearing, Petitioner testified that she was certified as a working chef by the American Culinary Federation with a degree from the University of Michigan in hospitality management. However, Petitioner did not refer to the American Culinary Federation or list a graduate degree on the résumé that she furnished to Respondent in 1992. Petitioner's testimony is not credible. Petitioner's 1992 résumé includes the following professional training and certifications: (a) 1969, United States Air Force sanitation certificate; (b) 1986, State of Florida sanitation certificate; (c) 1981, National Cooking Institute, Denver, Colorado, for 360 hours in a culinary arts skills program, receiving an outstanding performance award for contribution in support of United States Air Force food service, catering, and special functions; (d) 1981, American Hotel/Motel Association certification for a course in introduction to hospitality industry and food and beverage control; (e) 1987, certificate of achievement for the United States Air Force Culinary Arts Upgrade Training for Managers and Supervisors, a 260-hour workshop at Randolph Air Force Base in Texas; and (f) 1988, a nutrition certificate for a 450-hour workshop at the Culinary Arts School in St. Augustine, Florida. Petitioner's 1992 resume includes the following work experience: (a) 1969-1975, service supervisor at a local restaurant in Panama City, Florida; (b) 1969-1985, full-time party chef and kitchen manager at Tyndall Air Force Base Non- Commissioned Officer's Club; (c) 1982-1992, part-time kitchen manager and food production specialist at Haney Vocational Technical Center, in Bay County, Florida, including working as an assistant instructor; and (d) 1985-1992, full-time kitchen/dining room manager and executive chef at Tyndall Air Force Base Officer's Club. Respondent is a hospitality company that provides upscale accommodation and fine cuisine to its guests. Respondent gives its employees a copy of its comprehensive employee handbook when they are hired. New employees are required to sign an acknowledgement that they agree to read and abide by the rules and regulations contained therein. Petitioner signed the acknowledgment that she had received and would abide by the rules set forth in the employee handbook on May 12, 1992. The employee handbook contains a complaint procedure. Employees are encouraged to report any job-related problems, including discrimination or harassment, to their supervisor and up the chain of command if the supervisor is part of the problem. The employee handbook sets forth rules of conduct and a three-step progressive disciplinary procedure that applies except in certain circumstances. The first time an employee violates a rule, the employee receives an oral reprimand. The second rule violation results in a written final warning regarding the behavior. Respondent terminates an employee for a third violation of a rule. The employee handbook requires employees to call their supervisor when they find it necessary to be absent from work due to illness, or other emergencies. This call to the supervisor must be made no later than one hour before a scheduled time to start work. Violation of this rule may result in immediate termination of employment without resort to the three-step disciplinary procedure. In 1996, Respondent amended its personnel procedures. The new policy regarding sick and personal leave was attached to employees' paychecks. The new policy required employees to request non-emergency personal or sick leave in writing ten days in advance. The request form was to be submitted directly to the employees' supervisors. Respondent knew about this policy and complied with it when she had surgery. Respondent hired Petitioner as a cook in the banquet kitchen effective May 14, 1992. On June 2, 1992, Respondent transferred Petitioner to the kitchen in Respondent's Sunset Bay facility. On April 1, 1993, Respondent transferred Petitioner back to the banquet kitchen as lead pantry cook. She usually worked the breakfast shift. Her principal duties involved preparation of cold foods. Chris Chirum was Respondent's Executive Chef of the Resort in April 1997 and at all times material here. Michael Kulow, Respondent's Director of Food and Beverage, was Chef Chirum's supervisor. Chef Chirum supervised an Executive Sous Chef, a Banquet Chef also known as Chef Tourant, and various restaurant chefs/managers and/or cooks, including Petitioner. Chef Chirum encouraged all of his subordinates to adhere strictly to Respondent's attendance policies. He urged them to call him directly at work or home when they would not be able to make a scheduled shift. This enabled Chef Chirum to ensure that the kitchens were always properly staffed. When a position of employment becomes available, Respondent's Human Resources Department publishes the vacancy in a company newsletter. Respondent's policy is to hire qualified applicants from within the organization if possible. If Respondent does not receive an application from a qualified in- house applicant, Respondent advertises job vacancies in newspapers and accepts outside applications. The company newsletter is available in the personnel office for walk-in applicants to review. Once the Human Resources Department receives an application, it is sent to the appropriate department head for further consideration. In April 1997, Wayne Edwards, applied for a vacant position as Chef Tourant.1 Mr. Edwards had not previously been employed by Respondent, but he had excellent credentials as a Chef. Mr. Edwards graduated from the University of Kansas with a graduate degree in business. He also completed a three-year degree program in hospitality management at a community college in Kansas. He was certified as a working chef by the American Culinary Federation, receiving Chapter Chef of the Year in Huntsville, Alabama. Mr. Edward's work experience includes the following: (a) 1990-1991, food and beverage director for a Hilton hotel; (b) 1992-1993, food and beverage director for a Marriott hotel; (c) 1994, food and beverage supervision for banquets and culinary a la carte at a Holiday Inn hotel; and 1995-1997, owner/operator of a sports bar. Petitioner discussed her interest in applying for the position of Chef Tourant with Michael Kulow in April 1997. He did not encourage her to apply for the job but told her to file an application. Petitioner went to the personnel office and picked up an application. Her testimony that she completed the application and submitted it to Respondent's Human Resources Department is not persuasive. The record does not contain a copy of Petitioner's application for the position of Chef Tourant. Michael Kulow, in conjunction with Chef Chirum, usually made the hiring decisions for kitchen employment positions. In this case, Michael Kulow decided to hire Wayne Edwards as Chef Tourant. Chef Chirum agreed with Michael Kulow that Mr. Edwards was more than qualified for the position of Chef Tourant. Chef Chirum was not aware that Petitioner was interested in the job. Chef Chirum provided persuasive testimony at the hearing that Petitioner did not have the educational background or work experience that Mr. Edwards possessed. Competent evidence indicates that Respondent would have hired Mr. Edwards as Chef Tourant even if Petitioner had followed the correct procedure and submitted an application for the position. On July 21, 1997, Petitioner filed a complaint with FCHR alleging age and race discrimination based on Respondent's failure to promote her to Chef Tourant. FCHR did not provide Respondent with a notice of this complaint until May 1998. On August 8, 1997, Chef Chirum gave Petitioner a verbal warning for being absent during a scheduled shift. He explained to her the importance of following the policies set out in the employee handbook relative to attendance. He explained the disciplinary procedure. Petitioner signed the Employee Communication Notice but indicated that she did not agree with it. On November 24, 1997, Chef Chirum gave Petitioner a final written warning for an unexcused absence. Petitioner was scheduled to work the morning shift and never showed up. Petitioner claimed that she had requested the day off. However, Petitioner had not submitted the proper paperwork in a timely manner for requesting non-emergency personal/sick leave. Petitioner was or should have been aware that any further violation of the attendance policy might result in termination of her employment. On December 13, 1997, Chef Chirum set up a television in the banquet kitchen. He wanted to watch the score of a football game with the sound muted on the set. Petitioner became upset when she realized that Chef Chirum had the television in the kitchen because she had not been allowed to have a radio on while she worked. Chef Chirum attempted to explain that, unlike the radio, the muted television did not interrupt essential communications in the kitchen. Petitioner continued to argue, raising her voice. Chef Chirum spoke to Petitioner in his office. He told her to take the rest of the day off so she could calm down. Before she clocked out, Petitioner asked Chef Chirum if she should work the next day. He responded that she should because she was scheduled. On the evening of December 13, 1997, Petitioner called Jo Ann Thigpen, one of the banquet servers, at work. Petitioner told Ms. Thigpen that she would not be coming in to work the next day because she had experienced an anxiety attack. Petitioner asked Ms. Thigpen to relay the message to her boss. Ms. Thigpen gave Executive Sous Chef, Chris Anglin, Petitioner's message that night. Petitioner should have contacted her supervisor directly instead of delivering the message through another employee. December 13, 1997, was Petitioner's last day at work. December 14, 1997, was a Sunday. Petitioner usually had the day off on Sunday. However, she had volunteered to work on the 14th and had been scheduled to do so. On the morning of December 14, 1997, Petitioner called the banquet kitchen and talked to Carol Ann Ernest, who worked next to Petitioner in the banquet kitchen. Petitioner asked Ms. Ernest to tell Chef Chirum that she would not be in to work that day. Ms. Ernest delivered the message a few minutes later when Chef Chirum called the kitchen. Petitioner should have called Chef Chirum at home or left a message on his voice mail instead of giving the message to a co-worker. Petitioner did not show up for scheduled work or call Chef Chirum on Monday, December 15, 1997. Petitioner was not scheduled to work on Tuesday, December 16, 1997. She did not show up for scheduled work or call Chef Chirum on Wednesday, December 17, 1997. On December 17, 1997, Petitioner went in to Respondent's Human Resources Department to talk with Sylvia Hanks, Respondent's Vice President of Human Resources. Petitioner told Ms. Hanks why she became upset and left work on December 13, 1997. Petitioner explained to Ms. Hanks that she was under a lot of stress in her work environment. Petitioner claimed that Wayne Edwards and other employees in positions of authority had been rude and threatening to her. At the time of the meeting on December 17, 1997, Ms. Hanks was not aware that Petitioner had filed a race or age discrimination claim on July 21, 1997.2 Petitioner did not raise the issue directly with Ms. Hanks. Instead, Petitioner requested a three to four-week leave of absence. Ms. Hanks gave Petitioner a leave of absence form and encouraged her to complete the form and return it to the Human Resource Department. Petitioner never returned the completed form. After meeting with Petitioner on December 17, 1997, Ms. Hanks investigated Petitioner's allegations regarding the incident on December 13, 1997, and her allegations of unfair treatment. Ms. Hanks was unable to verify Petitioner's allegations. Ms. Hanks did not attempt to contact Petitioner after completing her investigation because she agreed with Chef Chirum's decision to terminate Petitioner for violation of Respondent's attendance policy. Sometime during the workweek beginning December 15, 1997, Petitioner's attorney contacted Ms. Hanks. The attorney informed Ms. Hanks that she knew Respondent would do the right thing for Petitioner. The attorney never mentioned Petitioner's pending claim of age or race discrimination against Respondent or that Petitioner had filed a Charge of Discrimination with FCHR. Respondent subsequently terminated Petitioner's employment, effective December 13, 1997, for failure to comply with the attendance policy. When Chef Chirum made the decision to fire Petitioner, he was not aware of her pending claim of age or race discrimination. There is no persuasive evidence that Petitioner's termination was in retaliation for filing a discrimination claim with FCHR.
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 dismissing Petitioner's Charge of Discrimination with prejudice. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of January, 2001.