The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 2nd day of February, 2006.
The Issue The issues are whether Petitioner has cause to discipline Respondent, and if so, whether Respondent's employment should be terminated.
Findings Of Fact At all times material, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Washington County, Florida. Respondent began working as a food service worker for Petitioner in 1998. In February 2009, Petitioner employed Respondent as Manager of Food Services at the Chipley High/Roulhac Middle School Cafeteria (the “Cafeteria”). Respondent received good performance evaluations throughout her tenure. Petitioner never had cause to discipline Respondent. In her capacity as manager, Respondent supervised several food service workers at the Cafeteria. These included, among others: Becky Brock, cashier and cook; Florence Harmon, cook; Louise Pettis, cook; and Evelyn Harmon, cook. Respondent was the only manager at the Cafeteria. Petitioner has a contract with an outside vender, Chartwell Food Service Management Company (Chartwell), to provide management oversight for food service operations at Petitioner's school cafeterias. In February of 2009, Chartwell’s on-site manager for the District was Jim Boylen. Every five years, the Florida Department of Education (DOE) conducts a Coordinated Review Effort (CRE) Audit of selected school cafeterias. When Bill Lee became Petitioner's Director of Food Services in October 2008, he learned that there would be a CRE Audit in February of 2009. Mr. Lee knew that DOE would audit two schools in the District. He also knew DOE would not disclose the identity of the schools until February 2, 2009. The CRE Audit is a very important audit. It is designed to assure the integrity of the federally-funded child nutrition programs operated by school districts. The CRE Audit can affect the District’s entire national school lunch operations. As the February 2, 2009, date approached, Mr. Boylen and Mr. Lee were eager to learn which two schools DOE intended to audit. It was Mr. Boylen’s responsibility to make sure that the specific schools were ready for the audit. Thus, Mr. Boylen asked Mr. Lee a couple of times on February 2, 2009, whether DOE had identified the schools. Mr. Lee received an email on February 2, 2009, at 4:11 p.m., that the Cafeteria was one of the two school cafeterias selected for the CRE Audit. Mr. Lee notified Mr. Boylen that same day of the Cafeteria's selection. Earlier on February 2, 2009, Mr. Boylen met with Respondent and her staff to discuss their production sheets. Mr. Boylen identified some deficiencies with the quality of the forms that the staff used. While Mr. Boylen was addressing Ms. Brock, Respondent looked directly at Ms. Brock and made a gesture with her hand while pointing at her head. Ms. Brock understood Respondent’s hand gesture to mean that Ms. Brock was stupid. Respondent's hand gesture embarrassed Ms. Brock. Later on February 2, 2009, Respondent asked Ms. Brock to give her a ride home from work. When Ms. Brock refused because her husband was sick, Respondent told Ms. Brock to "go home to [her] cry-baby husband.” On February 3, 2009, Mr. Boylen notified Respondent that DOE had selected the Cafeteria for the CRE Audit. Respondent was not happy about the selection because DOE had selected the Cafeteria for a previous audit. Respondent felt it was unfair that her lunchroom would be subjected to another audit for the 2008/2009 school term. The CRE Audit is stressful for cafeteria managers because the audit includes a live observation component. During the observation, the auditors observe cafeteria cashiers to determine whether they are properly following collection procedures. The collection process is the least controlled component of the audit. If a cashier makes a mistake during the live-observation, the mistake cannot be fixed. During the afternoon of February 3, 2009, Respondent's staff was cleaning the kitchen in preparation for the audit. When Respondent moved a rolling cart, she saw a pair of Ms. Brock’s shoes under the cart, along with a hard, heavy-duty cardboard tube. The cardboard tube was from an industrial-size roll of Saran Wrap. The cardboard edge of the tube is about a quarter of-an-inch thick, and the opening of the tube is two and one- half inches in diameter. The cardboard tube itself is about 18 inches long. Respondent grabbed the cardboard tube and approached Ms. Brock, who was putting away food. Ms. Brock did not see Respondent approach her, but she heard Respondent talking about a big inspection coming up. Ms. Brock heard Respondent say that “there needed to be some housecleaning starting with [Ms. Brock].” Respondent had the cardboard tube in her right hand. Without any warning, Respondent stopped behind Ms. Brock, drew back, and hit her hard on her hip/buttocks area with the cardboard tube. Ms. Brock had not said anything to provoke Respondent. When Respondent hit Ms. Brock, there was a loud pop. At first Ms. Brock was shocked, asking her co-workers what she had done. Then with a red face and tears coming down her face, Ms. Brock told Ms. Pettis how much it hurt. Ms. Brock’s hip/buttock area immediately began to burn, turn red, and become a whelp with the skin raised up from swelling. After Respondent hit Ms. Brock with the cardboard tube, Respondent told Ms. Brock that Respondent was going to throw Ms. Brock’s shoes in the garbage. Ms. Brock responded to Respondent, saying, “Please don’t.” Respondent then opened the door and threw Ms. Brock’s shoes out the door of the Cafeteria. Ms. Brock was very embarrassed to have been hit in front of her co-workers. Although shy and very embarrassed, Ms. Brock showed the mark to Ms. Florence Harmon, Ms. Pettis, and Ms. Evelyn Harmon. Ms. Pettis described a red streak that was as wide as the tube. Ms. Florence Harmon described a red mark and a good-sized whelp. Ms. Evelyn Harmon also saw the red mark and whelp. Ms. Brock tried to show the red mark and whelp to Respondent. However, Respondent avoided Ms. Brock and would not look at the injury. That evening, Ms. Brock looked in the mirror and saw the bruise. The following day, a bluish-green bruise was still on her hip. These were not the only times that Respondent called Ms. Brock by demeaning and derogatory names and otherwise insulted her in the work environment. Respondent had a history of mistreating Ms. Brock, including calling Ms. Brock demeaning and derogatory names at work, like “dumb-dumb,” “cry baby” and “whimp.” Ms. Brock always tried to be friends with Respondent and wanted Respondent to like her. Ms. Brock usually sat next to Respondent during lunch. Ms. Brock and Respondent would laugh and talk with the group. On one occasion after lunch, Ms. Brock and Respondent watched a DVD movie on Respondent's portable DVD player. On another occasion, Ms. Brock and Respondent met each other at Goodwill to shop. Nevertheless, Ms. Brock was fearful of Respondent. After the incident on February 3, 2009, Respondent put the cardboard tube in her office. Later that day, Respondent called Ms. Brock into her office and asked Ms. Brock why she told Ms. Florence Harmon about the incident. Respondent then threatened Ms. Brock, telling her that “if [she] did not behave that [Respondent] would give her some more of [the cardboard tube].” The following day, Respondent threatened Ms. Brock again by asking Ms. Brock if she “wanted some more of what [Respondent] had given [her] yesterday.” Ms. Brock saw the cardboard tube in Respondent’s office on both of these days. The day after the incident, Respondent also threatened to hit Ms. Florence Harmon with the cardboard tube. Respondent reached down under her desk, pulled out the cardboard tube, and told Ms. Harmon that she “was next.” Ms. Harmon believed that Respondent was not joking or playing around when she made the threat. Initially, Ms. Brock was afraid to report the incident. Ms. Brock had witnessed Respondent retaliate against other employees who had made complaints about Respondent. Ms. Brock feared that Respondent would retaliate against her if Ms. Brock reported the incident. As time passed, Respondent continued to mistreat Ms. Brock by deliberately ignoring her and avoiding her. Respondent wouldn’t talk to Ms. Brock. Ms. Brock eventually decided to report the incident. On February 9, 2009, Ms. Brock called Dr. Cook to report the incident. Dr. Cook told Ms. Brock that Ms. Brock would need to put her complaint in writing. Ms. Brock replied that she was afraid to go to the District's office to deliver her written complaint, because she feared that Respondent might find out and retaliate against her. Therefore, Dr. Cook told Ms. Brock that she could mail her complaint to Dr. Cook’s home address. Ms. Brock typed a letter to Dr. Cook, outlining the facts and circumstances. Ms. Brock mailed the letter on February 10, 2009. When Dr. Cook received Ms. Brock’s letter on February 11, 2009, she asked Deputy Superintendent Jayne Peel and Mr. Lee to investigate the matter. Dr. Cook believed that having two members of the District's staff listening to the employees and taking notes would ensure that the facts were accurately recorded. Dr. Cook believed the matter was very serious, and she wanted it investigated the same day. Thus, Ms. Peel and Mr. Lee immediately went to the Cafeteria. Mr. Lee and Ms. Peel first met with Respondent. They explained why they were there, and they asked Respondent to give her version of the incident. Respondent wrote out a statement in which she admitted that she “popped” Ms. Brock, but claimed she was just playing around and didn’t mean to hurt her. Respondent wrote in her statement that Ms. Brock was “acting like a baby” when the incident occurred. Respondent did not express any remorse over hitting Ms. Brock with the cardboard tube. Ms. Peel and Mr. Lee then interviewed four other food service employees: Ms. Brock, Ms. Florence Harmon, Ms. Pettis, and Gladys Wagner. Among other things, these employees described how Respondent hit Ms. Brock with the cardboard tube and how the injury produced a red mark and whelp. They also related that Respondent’s supervision of the Cafeteria created a hostile work environment. Ms. Peel returned to the District's office on February 11, 2009. She reported the results of the investigation to Dr. Cook. On February 13, 2009, Ms. Brock notified Dr. Cook that the cardboard tube was at the Cafeteria, if Dr. Cook needed it. Dr. Cook obtained the cardboard tube and placed it in a secure location. The atmosphere in the Cafeteria changed on a day to day basis, depending on Respondent's mood. When Respondent was in a good mood, the work environment was friendly, even playful, as the staff joked around. On those days, the staff might pop each other with a dish cloth or brush at each other's feet with brooms. When Respondent was not in a good mood, she was likely to call the staff, in addition to Ms. Brock, derogatory names. For instance, Respondent referred to another employee, Ms. Wagner, as “crippled” or "limpy” because Ms. Wagner had bad knees and walked with a limp. Respondent also told Ms. Florence Harmon, on more than one occasion during the 2008/2009 school year, that Ms. Harmon “should have died when her husband died.” Ms. Harmon’s husband died five years ago. Respondent would refer to herself at work as the “H-N- I-C,” i.e., Head N In Charge. Both before and after the incident, Respondent would reprimand employees in front of their co-workers, teachers and students, including shouting at the employees. When employees requested time off or took time off, Respondent would ignore them and not speak to them. On one occasion, Respondent threatened to reassign Ms. Brock as punishment if Ms. Brock took time off. Respondent sometimes used inappropriate punitive measures in response to employee performance issues. For instance, Respondent threatened to take Ms. Brock’s stool away and make her stand when working as a cashier as punishment for accidentally missing a charge for a slice of pizza. Respondent did take Ms. Brock’s stool away on at least one occasion. Additionally, Respondent used the Cafeteria to cater a private function, for which she earned a profit. Petitioner did not request advance permission to use the facility for personal reasons in violation of Petitioner's policy. Respondent's testimony that she was not aware of Petitioner's policy regarding the use of school property for personal reasons, after seven years as Food Service Manager, is not credible. Dr. Cook carefully considered the facts learned by Ms. Peel and Mr. Lee during their investigation. Even though the CRE Audit was scheduled for the following week, Dr. Cook decided to suspend Respondent with pay effective, February 12, 2009. Ms. Peel and Mr. Boylen met with Respondent that afternoon and advised Respondent of Dr. Cook’s decision. Ms. Peel also advised Respondent that she would have an opportunity for a pre-termination conference with Dr. Cook and that Respondent had the right to request a formal hearing on Dr. Cook’s recommendation. Petitioner subsequently gave Respondent written notice by letters dated February 13, 2009, regarding the following: Dr. Cook’s recommendation, (b) the date of Respondent's pre- termination conference with Dr. Cook; (c) the date of Petitioner's meeting on March 9, 2009; and (d) Petitioner’s right to request a formal hearing. Superintendent Cook had a pre-termination conference with Respondent on February 19, 2009. At that time, Respondent gave her version of the events directly to Dr. Cook. On February 23, 2009, Respondent provided Petitioner with a written request for a hearing. In a letter dated March 18, 2009, Petitioner notified Respondent that Petitioner would meet on March 19, 2009, to decide whether it would conduct the hearing or refer the case to the Division of Administrative Hearings. The March 18, 2009, letter also advised Respondent that Petitioner would rely on additional information relating to inappropriate comments that Respondent allegedly made to employees to support Petitioner's decision to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 16th day of July, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of July, 2009.
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
The Issue The issue in this case is whether the unused balance in a state employee’s flexible spending account must be forfeited as a result of her failure to file claims exhausting the account before the April 15, 2002, deadline.
Findings Of Fact The State of Florida has established a Salary Reduction Cafeteria Plan (“Plan”) for the benefit of its employees. The Plan, which is set forth in a formal written document that was most recently amended and restated as of September 20, 2000, is designed to take advantage of provisions in the Internal Revenue Code that permit the exclusion of reimbursement for various specified expenses——such as medical and dependent care costs—— from the gross income of employees who participate in a “cafeteria plan”1 that meets all the conditions prescribed under federal tax law. Simply put, the Plan allows state employees to pay for certain qualified expenses with pretax dollars by electing to have a predetermined amount deducted from each paycheck and deposited into a “flexible spending account,” out of which qualified expenses can be reimbursed, tax free, according to the terms of the Plan. Pursuant to authority granted under Section 110.161, Florida Statutes, the Florida Department of Management Services (“DMS”) operates and administers the Plan. The Division of State Group Insurance (“Division”) is designated in the Plan document as the Plan’s “Administrator.” Petitioner Elsa Lopez (“Mrs. Lopez”) is a state employee. She works as a secretary in the Office of the Public Defender for the Fifteenth Judicial Circuit, in West Palm Beach, Florida. During the “open enrollment” period2 in 1998, Mrs. Lopez elected to participate in the Plan during “plan year”3 1999, authorizing the state to reduce her salary by $2,500 over the course of the plan year, the money to be placed in a flexible spending account for the purpose of reimbursing her (with pretax dollars) for dependent care expenses. In this way, Mrs. Lopez effectively sheltered $2,500 from federal income tax. In late 1999, in order to continue paying for dependent care with pretax dollars, Mrs. Lopez again chose to participate in the Plan, authorizing the state to reduce her salary by $3,500 during plan year 2000. Mrs. Lopez made the above-described elections by signing, in each instance, an Open Enrollment Form. She signed the first of these forms on October 15, 1998, and the second on September 30, 1999. On both forms, an “employee certification” appears just above Mrs. Lopez’s signature. This certification states in pertinent part: I understand that I will forfeit any balance(s) remaining in my account(s) at the end of the Plan Year in accordance with the Internal Revenue Code Section 125. If eligible expenses are not incurred during my eligible period of participation equal to the[4] account balance and/or if claims for the expenses are not filed with the Division of State Group Insurance by the claims filing deadline date (April 15), I will forfeit any remaining balance(s). The risk of forfeiture to which the certification refers is an important condition for the favorable tax treatment accorded flexible spending accounts established under cafeteria plans. Federal law requires that, to qualify for the tax break, a cafeteria plan cannot provide for deferred compensation. See 26 U.S.C. § 125(d)(2)(A). The Internal Revenue Service has determined that plans which allow participants to carry over unused contributions from one plan year to another operate to enable participants to defer the receipt of compensation——and thus do not meet the conditions for excluding contributions from income. See Prop. Treas. Reg. § 1.125-1, Q/A-7 (49 F.R. 19321, 19324, 1984 WL 139403). Consequently, employees participating in a qualified plan must timely “use or lose” their respective contributions in exchange for the benefit of paying for health and/or child care expenses5 with pretax dollars. To preserve the tax-exempt status of the Plan, DMS has promulgated rules intended to prevent the Plan from providing deferred compensation. For example, Rule 60P-6.0081(3), Florida Administrative Code, provides that nitial requests for reimbursement for expenses incurred during a participant’s period of coverage must be postmarked or received if not mailed, at the Department no later than April 15 following the prior Plan Year. DMS has also mandated that “if unused portions of the participant’s annual election remain in an account for which otherwise eligible claims are not received prior to the claims filing deadline, these funds shall be forfeited.” Rule 60P- 6.010, Florida Administrative Code (emphasis added). The term “claim filing deadline” is elsewhere defined as “April 15 following the participant’s period of eligibility.” Rule 60P- 6.006(1), Florida Administrative Code. Faithful to the foregoing rules, the Plan document prescribes a reimbursement procedure for dependent care expenses that provides in pertinent part: (a) Expenses That May Be Reimbursed. Under the Dependent Care Component, a Participant may receive reimbursement for [covered costs] incurred during the Plan Year for which an election is in force. * * * Use-It-Or-Lose-It Rule. If a Participant does not submit enough expenses to receive reimbursements for the full amount of coverage elected for a Plan Year, then the excess amount will be forfeited[.] Applying for Reimbursements. A Participant who has elected to receive dependent care benefits for a Plan Year may apply for reimbursement by submitting an application in writing to the Administrator in such form as the Administrator may prescribe, during the Plan Year but not later than by April 15 following the close of the Plan Year in which the expense arose[.] Plan § 7.5 Mrs. Lopez understood that her funds were subject to forfeiture under the “use it or lose it rule.” She also knew that the claim filing deadline for plan years 1999 and 2000 was April 15 following each respective plan year. What Mrs. Lopez did not know, she insists, is that the claim filing deadline for plan year 2001 was April 15, 2002. Mrs. Lopez chose to participate in the Plan during plan year 2001, not by submitting an Open Enrollment Form, as in previous years, but by doing nothing, which resulted, by operation of the Plan, in a “rollover election.” A rollover election occurs, pursuant to the provisions of Section 4.4(b) of the Plan document, when an existing participant fails timely to submit an Open Enrollment Form, which inaction is deemed to constitute an election of the same type of coverage as was in effect for the previous plan year. In accordance with Section 4.4(b), Mrs. Lopez was deemed to have authorized the state to deduct $3,500 from her salary for plan year 2001, such untaxed amount to be used for the reimbursement of dependent care expenses. Mrs. Lopez does not complain that the rollover election thwarted her actual intent. In fact, Mrs. Lopez desired to participate in the Plan during plan year 2001. Because she did not submit an Open Enrollment Form for plan year 2001, however, there is no document bearing Mrs. Lopez’s signature below an “employee certification” acknowledging the April 15, 2002, claim filing deadline——a date which, as just mentioned, she denies having been aware of. Mrs. Lopez goes beyond merely disclaiming knowledge of the deadline; she charges that the state misled her into believing that she could file claims for reimbursement through June of 2002. According to Mrs. Lopez, she placed a telephone call to the Division in February 2002 to request claims forms and inquire about the deadline for filing claims, which she knew from experience was approaching. The person with whom she spoke, says Mrs. Lopez, told her that claims incurred during plan year 2001 could be submitted until June 2002. Needless to say, the Division disputes Mrs. Lopez’s account of this purported conversation. However, because Mrs. Lopez has not been able to identify the person with whom she claims to have spoken, the date and time of the alleged call, or even the phone number she dialed, the Division was hard-pressed to present evidence directly refuting Mrs. Lopez’s testimony. Therefore, the Division adduced evidence concerning the routine practices and procedures of its customer service employees. This evidence persuaded the undersigned (who hereby finds) that it is highly unlikely Mrs. Lopez was informed by a customer service representative6 that the claim filing deadline was in June of 2002.7 That said, the undersigned accepts Mrs. Lopez’s testimony (and finds) that she was told about a June 2002 deadline. Resolving conflicts in the evidence, he finds that what happened, more likely than not, was that the customer service person informed Mrs. Lopez, correctly, that the claim filing run-out period lasted through the end of June 2002. (The “claim filing run-out period” is the “period during which [DMS] will accept documentation in support of claims filed within the claim filing deadline. This period will not extend beyond June 30 following the end of the prior plan year.” Rule 60P- 6.006(2), Florida Administrative Code (emphasis added). The claim filing run-out period gives a participant whose timely filed claim lacks proper documentation a little extra time to submit such documentation and thereby prevent denial of the claim. See Rule 60P-6.0081(4), Florida Administrative Code.) For reasons that cannot be determined, the customer service representative probably believed, mistakenly but not unreasonably, that Mrs. Lopez wanted to know whether additional documentation (such as the child care provider’s invoice8) relating to an already, or soon-to-be, filed claim for reimbursement could be submitted at a later date. While the customer service person most likely answered a different question than the one Mrs. Lopez meant to ask, there is no evidence that he or she acted improperly, negligently, or with the intent to deceive Mrs. Lopez. Mrs. Lopez failed to submit her claim before the April 15, 2002, deadline. This forced the Division, as the Plan’s Administrator, to declare her unused balance of $3,500 forfeited under the “use it or lose it rule.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Division enter a final order denying all claims for reimbursement of dependent care expenses incurred in plan year 2001 that Mrs. Lopez submitted after the claim filing deadline of April 15, 2002, and declaring the entire unused balance remaining in her account for that year forfeited. DONE AND ENTERED this 3rd day of June, 2003, 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.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003.
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 10th day of September, 2006.
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 Does Petitioner, Target, have standing to challenge proposed rule 61A-3.055, Items Customarily Sold in a Restaurant (proposed rule or proposed restaurant rule), (Case No. 19- 4913RP)? Does Petitioner, Walmart, have standing to challenge the proposed restaurant rule (Case No. 19-4688RP)? Does Intervenor, ABC, have standing to participate in these challenges to the proposed rule? Does Intervenor, FISA, have standing to participate in these challenges to the proposed rule? Does Intervenor, Publix, have standing to participate in these challenges to the proposed rule? Is the proposed restaurant rule an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2019)?1/
Findings Of Fact Parties Division The Legislature has charged the Division with administration of Florida's Alcoholic Beverage and Tobacco Laws, including Chapters 562 through 568, Florida Statutes, known collectively as the "Beverage Law." 561.01(6), Fla. Stat. This charge includes licensing and regulation, as well as enforcement of the governing laws and rules. Title XXIV of the Florida Statutes governs sale of alcoholic beverages and tobacco. It includes chapters regulating beer (chapter 563), wine (chapter 564), and liquor (chapter 565). Among other things, these similarly structured chapters impose license fees, with the amounts determined by the population size of the county where the business is located. Section 565.02 creates fee categories for "vendors who are permitted to sell any alcoholic beverages regardless of alcoholic content." Section 565.02(1)(b)-(f) establishes the license fees based upon county population for licenses for places of business where consumption on premises is permitted. These are referred to as "COP" licenses. A number preceding COP, such as 4COP, indicates the county population range and therefore license fee amount for a particular license holder. Section 565.045, Florida Statutes, also permits COP license holders to sell sealed containers of alcoholic beverages for consumption off the premises (packaged goods). Walmart Walmart is a multinational corporation. It owns subsidiaries that own and operate retail stores, warehouse clubs, and an e-commerce website operated under the "Walmart" brand. Walmart does not own or operate stores. It holds them through wholly owned subsidiaries. For instance, Walmart is the parent company of its wholly owned subsidiary Wal-Mart East. Stores of Walmart subsidiaries have three primary formats. They are Supercenters, Discount Stores, and Neighborhood Markets. The record is silent about the nature and degree of day- to-day control, policy control, and marketing control that Walmart exercises or has authority to exercise over the subsidiaries. It is also silent about the nature and structure of the fiscal relationship between Walmart and its wholly owned subsidiaries. Walmart does not have a license issued by the Division pursuant to section 565.02(1)(b)-(f). Walmart has not applied for a license from the Division issued under section 565.02(1)(b)-(f). The record does not prove that Walmart intends to apply for a COP license. Wal-Mart East Wal-Mart East owns and operates "Walmart" branded stores at approximately 337 Florida locations. They include approximately 231 "Supercenters," nine "Discount Stores," and 97 "Neighborhood Markets." All of these stores sell food items. Depending on the store category, the items may include baked goods, deli sandwiches, hot meals, party trays, and to-go food items, such as buckets of fried chicken and pre-made salads. The areas adjacent to the departments of Wal-Mart East that sell food do not have seats and tables for diners. There are some benches, but not tables, scattered around inside the stores. None of the stores holds a license from the Florida Division of Hotels and Restaurants or the Florida Department of Health. They hold "retail food store" or "food establishment" licenses from the Florida Department of Agriculture and Consumer Services. In his deposition, Tyler Abrehamsen, assistant manager for Wal-Mart East Store #705 in Mt. Dora (Store 705), aptly described Walmart as "more than just a store." Walmart sells "anything you can think of from sporting goods to deli to candy." A Supercenter sells, among other things, general merchandise, golf balls, fishing gear, socks, motor oil, ammunition, groceries, deli goods, electronics, home furnishings, groceries, and hot food. Supercenters may house specialty shops such as banks, hair and nail salons, restaurants, or vision centers. Walmart Supercenters offer 142,000 items for sale. Many house McDonalds or Subway restaurants. Discount Stores are smaller than Supercenters. They sell electronics, clothing, toys, home furnishings, health and beauty aids, hardware, and more. Discount Stores offer about 120,000 items. A Neighborhood Market is smaller than a Discount Store. Neighborhood Markets sell fresh produce, meat and dairy products, bakery and deli items, household supplies, health and beauty aids and pharmacy products. Walmart Neighborhood Markets offer about 29,000 items. Store 705 is a Supercenter. The store holds a food permit issued by the Florida Department of Agriculture and Consumer Services under Chapter 500 to operate as a retail food store or food establishment. There are four picnic tables with seating in a pavilion outside the store. Some benches, but not tables, are scattered around the store. Store 705 holds a 2APS license permitting beer and wine package sales only. Wal-Mart East applied to the Division to change the license to a COP license. The Division processed the application and issued Store 705 a temporary license on May 13, 2019. Two days later the Division advised Store 705 that it issued the temporary license erroneously and that the license was void. Shortly afterwards a Division employee recovered the license from Store 705. On June 7, 2019, the Division issued its Notice of Intent to Deny License, relying in part on section 565.045.3/ Section 565.045, which the proposed rule implements, prohibits issuing a COP license to a place of business that sells items not "customarily sold in a restaurant." The floor plan Store 705 provided with its COP license application does not delineate an area for serving and consuming alcoholic beverages. When asked about plans to serve alcohol by the drink, the Wal-Mart East representative testified, "However, I'm not suggesting that in the future at some point we wouldn't be interested in selling drinks by the glass at Store 705." The witness went on to say, "What I'm saying today is I don't know if there are future plans and I don't think that we're prepared to say one way or another whether this would be our plan for this location for eternity." (TR. Vol. 1, p. 161) Wal-Mart East only plans to sell alcohol by the container at Store 705. If issued a COP license, however, it would be permitted to sell alcohol by the drink. Lake County Property Appraiser records identify the land use of Store 705 as "Warehouse Store." There is no evidence about the significance of this, how the categorization is determined, or what purpose it serves. Several credit card companies categorize Wal-Mart East stores as "grocery stores" and "supermarkets" or discount stores. There is no evidence about the significance of these categorizations, their meaning, how the categorization is determined, or for what purpose the categorizations are applied. The lack of relevant information about how and why the property appraiser and credit card companies determine these categorizations make them meaningless for any determination of whether Wal-Mart East stores are restaurants. Wal-Mart East leases space within Store 705 to a separate entity doing business as Wayback Burgers. Wayback Burgers has a kitchen, a service counter, a fountain drink dispenser, and seats and tables for dining. The Division of Hotels and Restaurants issued the owner of Wayback Burgers, under the authority of Chapter 509, a license titled "Seating Food Service License." The definitions section of Chapter 509 does not contain a definition for "Seating Food Service." The license does not identify the physical area covered by the license, although it refers to 22 seats. The Division of Hotels and Restaurants inspects only the area identified by signage, seating, food preparation area, and service area when inspecting Wayback Burgers. The Division of Hotels and Restaurants does not license the rest of Store 705 or any other Wal-Mart East store in Florida. The Department of Agriculture and Consumer Services issued Store 705 an Annual Food Permit denominated as for Food Entity Number: 33995. The license does not describe the physical area to which it applies. A January 4, 2019, document titled Food Safety Inspection Report for Store 705 lists "111/Supermarket" in a field of the report titled Food Entity Type/Description. The record does not explain the designation. The Department of Agriculture, Bureau of Food Inspection, Division of Food Safety, maintains a food inspection data base of permitted entities. That list identifies Store 705 as a supermarket. The Department of Agriculture often must decide whether it should license an establishment serving food or if the Division of Hotels and Restaurants should issue the license. The Department regulates food establishments and retail food stores. It does not have authority over food service establishments. Sometimes the Department consults with the Division of Hotels and Restaurants to determine what a business should be licensed as. When a vendor like McDonald's or Subway is located in a Walmart store the agriculture department bases its licensing category decision on ownership. If the store owns the McDonald's or Subway, the Department will license it. If a separate entity owns and operates the McDonald's or Subway, the department looks to the Division of Hotels and Restaurants to license it. Target The parties stipulated that Target is an upscale discount retailer that provides high quality, on-trend merchandise at attractive prices in clean, spacious, and guest- friendly stores. Target owns and operates approximately 126 general merchandise stores in Florida. Target does not hold a license issued by the Division under section 565.02(1)(b)-(f). The Florida Department of Agriculture and Consumer Services licenses all Target locations in Florida as retail food stores or food establishments under chapter 500. The licenses are for the entire store, including the food service portions discussed below. No Target store holds a license from the Florida Division of Hotels and Restaurants. The Florida Department of Health does not license any Target stores as food service establishments. Target sells beer and wine by the container in 124 of its Florida stores. At three store locations, Target sells beer, wine, and liquor from a separate liquor store with a separate entrance. Target operates Starbucks and Pizza Hut facilities under licensing agreements within 118 of its stores. Coffee, espresso, banana bread, chocolate chip cookies, ham and cheese croissants, oatmeal, and biscotti are representative examples of food sold at Target Starbucks. Target Pizza Huts typically sell carbonated drinks, smoothies, pretzels, popcorn, hot dogs, pizzas, chicken wings, and french fries. Some Target stores also have a Target Café selling limited food and beverage items. Target stores also sell items such as packaged, pre- made salads, fruit, and frozen meals. "Super Target" stores have delis, which sell cooked items like chicken fingers and rotisserie chicken. The cafés, Starbucks, and Pizza Huts occupy separate areas within the larger Target stores. They have their own cash registers. Customers may pay for retail items from the store at those cash registers. The inventory of all Target stores is subject to daily change. Location, geography, supply, and other factors affect a store's inventory. Target stores sell a gamut of items. They include groceries, frozen foods, furniture, rugs, garden tools, clothing, toys, sporting goods, health products, beauty products, electronics, office supplies, kitchen appliances, diapers, pet food, cell phones, and luggage. A Target store in Delray Beach has applied to the Division to change its beer and wine package license to a COP license. Target seeks the COP license in order to make package sales of liquor. Like the Walmart representative, Target's representative refused to state whether Target planned to offer alcohol by the drink at any of its stores. If it held a COP license, the store would be permitted to sell alcohol by the drink. ABC ABC stores retail alcoholic beverages in Florida. The stores hold a number of alcoholic beverage licenses issued by the Division. ABC holds 25 4COP licenses issued by the Division. In his deposition, the ABC corporate representative testified that he "would not be able to answer" if the proposed rule would have any impact on ABC. His testimony, however, proved that ABC stores seek clear guidance about what they can and cannot sell. Also, the proposed rule imposes limits upon what ABC stores can sell that the invalidated rule and the statute alone do not impose. FISA FISA is an independent association of alcoholic beverage retailers. It has 206 members. The Division licenses and regulates FISA's members. ABC is a FISA member. Including ABC, FISA members hold 61 4COP licenses. There is no evidence proving that any FISA member intends to apply for a COP license. Only the FISA members holding COP licenses would be affected by the proposed rule. This is not a substantial number of members. The other 145 members hold 3PS licenses (package sales) which the proposed rule does not affect. Neither the officers, the governing board, nor the members of FISA voted or took any other official action to authorize FISA to intervene in this proceeding. The evidence does not prove that the association is acting as a representative of its members in this proceeding. There is also no evidence, such as the FISA articles of incorporation, by-laws, or other association formation documents, proving the association's general scope of interest and activity or the authority of its President to act on its behalf. The evidence does not prove that participating in this proceeding is within the authority of the President or FISA. FISA President, Chris Knightly, testified in deposition that any change in where liquor could be sold could have an extreme financial impact on small family-owned businesses. But FISA offered no evidence to show the impact on its members or, for that matter, that any FISA members were actually small, family-owned businesses. The President also testified that the impact of the rule on FISA members would be minimal because the non-alcoholic items the stores sold were just conveniences for customers, not significant revenue sources. In light of the President's statement about minimal impact on FISA members and the number of members who hold COP licenses, the record does not prove that the proposed rule would have a substantial effect on FISA or a substantial number of its members. Publix Publix is a supermarket chain in Florida. It also operates a number of liquor stores throughout Florida. Publix holds two 4COP licenses and ten 2COP licenses (beer and wine only) issued by the Division.4/ The proposed rule imposes limits upon what Publix can sell at its 4COP licensed stores that the invalidated rule and the statute alone do not impose. Rulemaking The Division seeks to implement section 565.045. The pertinent parts of the statute provide: Vendors licensed under s. 565.02(1)(b)- (f) shall provide seats for the use of their customers. Such vendors may sell alcoholic beverages by the drink or in sealed containers for consumption on or off the premises where sold. (2)(a) There shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The Division, both in the invalid rule and in the proposed rule, seeks to provide clarity about the meaning of "customarily sold in a restaurant" as it is used in the statute. That desire was the reason it adopted the original rule, now invalidated, in 1994. The review by the Joint Administrative Procedures Committee (JAPC) back then observed, "Absent explanatory criteria, use of the word 'customarily' vests unbridled discretion in the department." The Division responded: "As mentioned in our meeting, all of proposed rule 61A-3.055 [1994 version] is, in itself, the division's attempt to define the admittedly vague phrase 'items customarily sold in a restaurant', as used in s. 565.045." The invalidated rule provided: 61A-3.055 Items Customarily Sold in a Restaurant. As used in Section 565.045, F.S., items customarily sold in a restaurant shall only include the following: Ready to eat appetizer items; or Ready to eat salad items; or Ready to eat entree items; or Ready to eat vegetable items; or Ready to eat dessert items; or Ready to eat fruit items; or Hot or cold beverages. A licensee may petition the division for permission to sell products other than those listed, provided the licensee can show the item is customarily sold in a restaurant. This petition shall be submitted to the director of the division at Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 2601 Blair Stone Road, Tallahassee, Florida 32399-1020, and must be approved prior to selling or offering the item for sale. For the purpose of consumption on premises regulations set forth in Section 565.045, F.S., items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", Section 24.122(4), F.S. The Final Order invalidating the earlier rule concluded: A rule is arbitrary if it is not supported by logic or necessary facts and is capricious if irrational. Dep't of Health v. Bayfront Med. Ctr., Inc., 134 So. 3d 1017 (Fla. 1st DCA 2012). Despite the Division representative's best efforts at deposition to avoid answering direct questions, the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs. The Division, through the deposition testimony of its representative, acknowledged this. The record offers no explanation why subsection (1) of the Restaurant Rule does not include these items. Excluding an item that the Division acknowledges is customarily sold in restaurants from a list of items customarily sold in restaurants is illogical. Rule 61A-3.055 is arbitrary and capricious. In 2018, while the challenge to the existing rule in Case No. 18-5116RX was underway, the Division began proceeding to amend rule 61A-3.055. This was a response to the challenges to the existing rule. The Division conducted six public hearings to receive public comment on various proposed amendments to the rule and to solicit input from the public. Petitioners did not participate in the hearings. There is no evidence that Petitioners suggested rule language, such as items to be listed as "customarily sold in a restaurant" or identifying characteristics of items "customarily sold in a restaurant" to the Division. Representatives of Intervenors attended each of the public hearings. There is no evidence that they suggested language for the rule either. During the May 6, 2019, rule development hearing, a representative of the Florida Restaurant and Lodging Association suggested that the Division conduct an investigation, study, or survey to determine what merchandise or services restaurants customarily provide. During the rule development proceedings, the Division did not conduct any investigation, study, or survey to determine what is customarily sold in a restaurant. The Division did not examine a sampling of establishments that it considered restaurants to determine what is customarily sold in restaurants. The Division did not use any of the data collected in 50,000 inspections each year to perform any studies, surveys, or analyses of what is customarily sold in restaurants or by COP license holders. It only sought comment from the restaurant industry and Division licensees through the public hearing process.5/ As required by law, the Division submitted various iterations of the proposed rule to JAPC for review. For each version of the proposed rule that it reviewed, JAPC observed that the rule appeared to be overly restrictive and that it may be arbitrary and capricious. On August 16, 2019, the Division published the final version of the proposed amended rule in Volume 45, Issue Number 160 of the Florida Administrative Register. It states: 61A-3.055 Items Customarily Sold in a Restaurant. As used in section 565.045, Florida Statutes, items customarily sold in a restaurant shall only include the following: Food cooked or prepared on the licensed premises; or Hot or cold beverages; or Souvenirs bearing the name, logo, trade name, trademark, or location of the licensed vendor operating the licensed premises; or Gift cards or certificates pertaining to the licensed premises. For the purpose of consumption on premises regulations set forth in section 565.045, Florida Statutes, items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", section 24.122(4), Florida Statutes. The Division explains the wording of section (1)(c) of the proposed rule as being based on the conclusion " the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs" in the Final Order invalidating the original rule. It also removed from the original rule language permitting a licensee to petition the Division to show an unlisted item is customarily sold at a restaurant. This change is also a reaction to the Final Order. As of the day of the hearing, the Division, in the person of its Deputy Director, could not state what a "restaurant" was. The Deputy Director testified: "The Department [Division] doesn't take a position on what is or isn't a restaurant in this instance [applying the proposed rule]. We didn't define it, so we don't have a position." (Tr. Vol. 1, p. 45). As of the hearing date, the Deputy Director for the Division could not state whether Walmart is a restaurant. (Tr. Vol. I, p. 84). On October 26, 2018, testifying in the earlier rule challenge, Thomas Philpot, the then Director of the Division and acting Deputy Secretary for the Department of Business and Professional Regulation, similarly said that the Division had no formal policy or procedure for deciding if a business was a restaurant. (Ex. 30, p.48). A clear definition of "restaurant" is the necessary predicate to determining what is customarily sold in a restaurant. Throughout the rule development and through the hearing, the Division did not have a clear definition of restaurant. The Division's representative testified that "[t]he Division does not have a definition that it can cite to either in statute or in rule for the term restaurant." (Ex. 20, p. 62). The Division's Proposed Final Order seems to take the position that a "restaurant" is either a public food service establishment licensed by the Florida Division of Hotels and Restaurants or a restaurant as defined in authoritative dictionaries. None of the parties, including the Division, offered results from any survey, study, or investigation, of either a statistically significant random sample or survey of all "restaurants," however they may be delineated, to determine what "restaurants" customarily sell.6/ Much of the evidence revolved around the theory advanced by Target and Wal-Mart East that because they offer areas where customers can purchase prepared food; because vendors like McDonalds, Pizza Hut, or Starbucks sell food in sections where the consumer can pay for the food and sit down to consume it; or because the stores sell deli and baked goods that could be consumed at the store; that Target stores and Walmart stores are restaurants. From that, Wal-Mart East and Target reason that everything they sell including toys, clothes, stereos, cleaning supplies, pet food, electronics, books, and sporting goods are items commonly sold at restaurants. The Division concentrated its presentation on countering that theory. The Division of Hotels and Restaurants licenses approximately 56,000 businesses as "public food service establishments." It refers to these businesses as "restaurants." Assuming the 463 Walmart-East and Target stores are also considered restaurants, adding them to 56,000 results in approximately 56,463 "restaurants" in the State of Florida. The combined Target and Walmart facilities would be .82 percent of the total number of Florida "restaurants." This does not establish that what Wal-Mart East stores and Target stores sell is what restaurants customarily sell. Wal-Mart East offered the testimony of John Harris, who worked 28 years for the Division. He served as Director of the Division and served as Secretary of the Department of Business and Professional Regulation. At the direction of counsel for Walmart and Wal-Mart East, Mr. Harris visited nine Florida establishments to view the premises and identify items sold at the establishments. Eight of the establishments hold current COP licenses. One is a Cracker Barrel restaurant. Mr. Harris' testimony proved that the items listed below were for sale at the selected establishments identified. None are listed as customarily sold at a restaurant in the proposed rule: Biltmore Hotel (holds a 4COP license): clothing, jewelry, sports attire, golf clubs, over-the-counter medications, art, golf clubs, golf club bags, tennis equipment, and skin treatments. Buster's Beer & Bait (holds a 4COP License): cigars and fish bait. CMX movie theater in Tallahassee, Florida (holds a 4COP license): movie tickets. Cracker Barrel (does not hold a COP license): apparel, hats, toys, stuffed animals, audio books, books, musical instruments, rocking chairs, hand lotions, jewelry, quilts, small tools, and cooking utensils. Neiman Marcus department store in Coral Gables, Florida (holds a 4COP license): jewelry, watches, sunglasses, handbags, clothing, shoes, wallets, pens, luggage, and fine china. Nordstrom department store in Coral Gables, Florida (holds a 4COP license): items similar to those for sale in the Neiman Marcus department store, makeup, grills, record players, and baby strollers. PGA National Hotel and Golf Resort (holds a 4COP license): clothing, shoes, cosmetics, spa services, haircuts, golf clubs, and golf attire. Saks Fifth Avenue (holds a 4COP license): items similar to those sold at the Neiman Marcus department store. Slater's Goods & Provisions (holds a 4COP license): razor blades, lip balm, prepackaged food items, cleaning supplies, aluminum foil, canned goods, and batteries. Daytona Speedway (holds a 4COP license issued for this location to Americrown Services): golf clubs, T-shirts, other clothing items, key chains, tires, specialized motorcycle mufflers, and event tickets. For each of the identified COP licensees, the identified items were for sale in areas for which there was free passage to and from areas where alcohol is stored or sold. Mr. Harris did not use his experience and expertise to identify the establishments as representative of COP license holders. Mr. Harris was not attempting to inspect a random, representative sample of Florida restaurants. A party's attorney selected the locations. There was no expert testimony establishing the validity of Mr. Harris' ad hoc survey. Mr. Harris also did not know which parts of the premises the COP licenses of the places that he visited covered. The evidence did not prove that the establishments were a representative sample of anything. In addition, Mr. Harris is not an objective or impartial witness. Mr. Harris is an advocate for Walmart and Target. He wants the proposed rule to be invalidated. Mr. Harris also represents Target as a lobbyist. There is no evidence that the sample size of nine is significant or representative of all COP license holders. All the exercise proves is that the Division has allowed establishments that contain areas holding COP licenses to sell a variety of items that the Division's proposed rule and the invalidated rule would not permit. The small number of establishments, the witness's allegiance, and the fact that the establishments were selected for use in this proceeding make the evidence wholly unpersuasive.
