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 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 the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida that regulates the operation of food service establishments pursuant to the provisions of Chapter 509, Florida Statutes. At all times relevant to this proceeding Respondent has been a public food service establishment within the meaning of Section 509.013(5), Florida Statutes, and, consequently, has been subject to the Petitioner’s regulatory authority. Respondent’s shop is located at 1152 Royal Palm Beach Boulevard, Royal Palm Beach, Florida. On October 16, 2003, Respondent submitted a facility plan to Petitioner which was reviewed as part of Respondent’s application to operate the subject location. The facility plan reflected that the ceilings would be tiled with acoustical tile. The facility has a small food preparation area adjacent to the cash register where the shop clerk adds to the consumer’s ice cream selected toppings, such as candy, chocolates, or nuts. The food preparation area is 23 inches wide and 48 inches long. On March 15, 2004, Mike Menor, an appropriately trained and experienced inspector employed by Petitioner, inspected the subject premises. A number of minor deficiencies were noted. Those deficiencies were subsequently corrected and are not at issue in this proceeding. In addition, Mr. Menor noted a deficiency pertaining to the ceiling in the food preparation area described in the preceding paragraph. This area of the facility had no drop ceiling, so that joists, rafters, and pipes were exposed. The area above the small food preparation area was not smooth and easily cleanable.2 On April 15, 2004, Mr. Menor conducted a follow-up inspection of Respondent’s facility. The ceiling deficiency had not been corrected.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating the provisions of Section 509.26(1), Florida Statutes, as alleged in the Administrative Complaint. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $250.00 for the violation. DONE AND ENTERED this 4th day of January, 2005, 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 4th day of January, 2005.
The Issue Whether Respondent's contract of employment as a cafeteria worker should be terminated.
Findings Of Fact Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/ On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back." Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements. Based on the above interpretation and to satisfy Ms. Barnes, the entire blame for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.
Recommendation It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract. RECOMMENDED this 28th day of February, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.
