The Issue Whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact DJ Enterprises of Panama City, Inc., owns and operates five Taco Bell restaurants in North Florida, including the Taco Bell Restaurant in Marianna, Florida. All Taco Bell franchises are required to conform to certain corporate guidelines regarding the quality of food and service. The guidelines also contain minimum standards for restaurant appearance as well as guidelines for the personal grooming of employees. In addition, all franchises are required to comply with federal and state laws regulating food-service employees, including regulations governing the restraint of body and facial hair. See Chapters two through four, FDA Food Code, and Florida Administrative Code Rule 61C-4.010(3). Each of Respondent’s restaurants has a Restaurant General Manager (RCG) who reports directly to Eric Baker, Director of Operations. His office is in Panama City, Florida, but he can be reached by cell phone at any time, and his number is posted in each store. Mr. Baker also visits each store about once a week to oversee operations. In May 2004, Petitioner, William L. Grant, was employed as a crew member at the Taco Bell restaurant located in Marianna, Florida. At the time of his employment, Mr. Grant was given a copy of the company’s handbook containing the grooming policy as well as the Champs Excellence Review (CER) For Team Members. The grooming policy required all employees, including Mr. Grant, to wear a hairnet or a stocking cap in conjunction with a Taco Bell hat. Stocking caps are panty hose-like caps that have been cut off and knotted or are purchased without the knot. Specifically, Respondent’s hair policy required all employees to keep their hair neat, clean and above the collar and eyebrows. An employee’s hair was to be kept within the circumference of the Taco Bell hat, with the hat seated firmly on the head. The policy included both men and women. The purpose of the grooming policy was to create the desired corporate appearance, and conform to health and safety requirements. From time to time, as long as state health requirements were met, Mr. Baker made exceptions to the hair policy when employees were going to attend special occasions. Both men and women, including Petitioner, benefited from the temporary relaxing of the hair policy. However, maintenance of the hair policy was and is an ongoing problem at all of Respondent’s restaurants. When Mr. Grant was hired, his hair was not a problem. As time went on, however, his hair became longer and bushier. The volume of his hair would not fit within the circumference of the Taco Bell hat even though Mr. Grant wore a stocking cap over his hair. Mr. Grant’s hair did not fit within the hat at the hearing when, with stocking cap on, he placed the Taco Bell hat on his hair. Indeed the hat did not sit firmly on Mr. Grant’s scalp, but sat, somewhat wobbly, on Mr. Grant’s hair with his hair bulging to the sides from underneath the hat. In October 2004, Mr. Grant was given a written warning for failing to maintain a clean-shaven appearance as required by the uniform policy. Mr. Grant had also been counseled and verbally warned prior to the write-up about maintaining his appearance. During his employment, Mr. Grant’s work performance was generally good, and he interacted well with the customers. Eventually, Mr. Grant expressed an interest in becoming a Shift Manger. Mr. Baker thought he would be a good candidate for the position and decided to promote Mr. Grant on the condition that Mr. Grant agree to cut his hair or otherwise get his hair in compliance with the Taco Bell grooming policy so that Mr. Grant would present a neat, more serious corporate appearance. Mr. Grant was agreeable to the condition. In January 2005, DJ Enterprises began the process of training Mr. Grant to become a Shift Manager at the Marianna location. Mr. Grant was sent to a state-sponsored Certified Professional Food Manager’s Class in Panama City, Florida. He also ran shifts on a limited basis beginning around February 23, 2005. After some training, Mr. Grant informed Mr. Baker that he did not want to cut his hair. Mr. Grant also told two Taco Bell site inspectors, when they inquired about his hair that he would not cut his hair. In a meeting on March 5, 2005, Mr. Grant told Mr. Baker that he did not need to cut his hair because he could get another stocking cap that would better contain his hair. Mr. Baker agreed to give Mr. Grant additional time to comply with the grooming policy. Mr. Baker prepared a memorandum of understanding that Mr. Grant signed on March 8, 2005. This agreement required Mr. Grant to comply with the grooming policy or give a two-week notice of his intent to quit. On Saturday, March 12, 2005, Mr. Grant arrived for his 8-4 p.m. shift but clocked out and left without permission around 10:50 a.m. Mr. Grant was upset about a change in his schedule. Mr. Grant was particularly upset because he had been removed from the Monday schedule which meant he was not going to get overtime hours that week. That same day, Mr. Baker visited the Marianna Taco Bell and immediately saw that customers were backed up. Mr. Baker asked the Manager-in-Charge, Brianna Thomas, why she was running so far behind. Ms. Thomas informed Mr. Baker that she was short-staffed because Mr. Thomas had walked off the job without her permission. She reported that Mr. Grant was unhappy with his work conditions, such as his pay rate and hours, and that he was openly complaining in front of other crew members. Mr. Baker instructed Ms. Thomas to “write-up” Mr. Grant for walking out on the shift. Mr. Baker was very concerned over Mr. Grant’s behavior and immediately tried to contact Mr. Grant at his house to obtain an explanation from Mr. Grant. Mr. Baker was unsuccessful in reaching Mr. Grant; he tried again later that day and was again unsuccessful. Mr. Baker left a message with Mr. Grant’s sister, Shelita Grant, who also worked at Taco Bell. Mr. Baker also instructed Ms. Thomas to continue to call Mr. Grant and leave a message for Mr. Grant to call Mr. Baker. Mr. Grant never returned the calls from Mr. Grant or Ms. Thomas. Mr. Grant returned to work on Sunday but made no effort to contact Mr. Baker. The memorandum Ms. Thomas had prepared regarding Mr. Grant’s leaving the job was given to him. Mr. Grant signed the memorandum and wrote a rebuttal stating that he told the manager he was not going to work Saturday if he did not get to work Monday also. Mr. Baker decided to terminate Mr. Grant for his behavior on the morning of March 12 and for failing to return his telephone calls. The termination was effective March 23, 2005. Mr. Baker, although concerned that Mr. Grant did not intend to cut his hair or take the necessary steps to get his hair in compliance with the grooming policy, did not terminate Mr. Grant for any reason related to his hair. There was no evidence that Mr. Grant’s termination was based on discriminatory policies regarding hair.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding that there was no competent evidence that Respondent violated the Florida Civil Rights Act and dismissing the Petition For Relief. DONE AND ENTERED this 18th day of September, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 18th day of September, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William L. Grant 4203 Pine Street Marianna, Florida 32446 Rebecca S. Daffin, Esquire 131 Harrison Avenue Panama City, Florida 32401
Findings Of Fact Petitioner, who has fifteen years experience in the restaurant business, was hired in October, 1984, by the Respondent, Jady's Inc., as general manager of its Baxter's restaurant in Sarasota. Since the operation was soon to be opened, Petitioner was advised that his duties included training employees, food service, and anything necessary to insure the proper and orderly operation of the restaurant. On April 2, 1985, less than a month after the restaurant was opened, Petitioner had his first accident, falling through the ceiling while checking a water heater in the attic, and striking himself on a step ladder. He injured his shoulder and neck in the fall. He did not lose any work time as a result of this incident though he was treated by a doctor and received medical compensation for the injury through Worker's Compensation. Since he continued working, however, he did not receive any payments for loss of wages. On August 21, 1985, he was again injured while working at the restaurant when he slipped and fell in the kitchen, hitting his head on the floor. He contends that his previous injury was aggravated by this accident and that he also injured his right leg. As a result of the accident, he saw several doctors including an orthopedic specialist. His injury was diagnosed as myositis, and he contends that though his leg has improved, he still has residual injuries which manifest themselves in pain radiating from the hip down the leg, and pain on the right side of his face, and in the jaw and shoulder. As a result of this second injury, he was awarded Worker's Compensation wage and medical payments and contends he still has some medical problems which tend to come and go. Petitioner continued to work after August 21, 1985, except for the initial three days he took off at the advice of his physician, and October 7, 1985, which he took off to help his wife with her liquor license. His actions were limited, however, in that he could not lift any substantial weight without pain and dizziness, but he was able to do the administrative work involved in managing the restaurant as well as serving and light food preparation. Nonetheless, on October 10, 1985, according to Petitioner, Mr. Schoenbaum terminated his employment stating at the time it was because he was injured. Petitioner contends that at the time of discharge, Mr. Schoenbaum threatened him with non- physical destruction of himself and his family through the contacts he had. When Mr. Oberoi asked for a leave of absence to recuperate and then return to work, according to Petitioner, Mr. Schoenbaum declined, stating he was injured and was not wanted at the restaurant. As a result of his injury, he received $270.00 per week as compensation for lost wages from the period October 7, 1985 through February 12, 1986. This was as opposed to his earnings of $500.00 per week plus benefits when he was discharged which, Mr. Oberoi contends, amounts to $3,000.00 in lost earnings for the period in question. After February 12, 1986, he received no more wage loss benefits. Petitioner claims that prior to his injury he was in generally good health admitting to a prior history of low back problems which occurred from four to five months before coming to work at Baxter's. He contends that this was not the injury he received while at work there. While he was working, he claims, he was paying for his own medical insurance but when he spoke with his company after the injury, he was advised that since the injuries took place at work, he should file for worker's compensation benefits instead. When Petitioner came back to work after the three day time off at the time of the second injury, he discussed with the Schoenbaums certain changes in the menu, and other matters which they wanted changed, but contends that at that time there was no discussion about the overall cleanliness of the restaurant or other discrepancies which they now claim support their termination of his services. He claims there was no discussion of his work performance at any time or any indication they were dissatisfied with his accomplishment of his duties. Mr. and Mrs. Schoenbaum, who are the main owners of Jady's, Inc., also have an extensive background in the restaurant business and claim this is the first discrimination complaint ever filed against them. The Schoenbaums decided, at the time they hired Petitioner, to put him in the restaurant business with the understanding he was to get a salary and a 10% equity position if the restaurant made money for fifteen months. The arrangement did not work out. As a result of what the Schoenbaum's consider Petitioner's poor management, the restaurant was losing money at a steady rate. They terminated his employment, reluctantly, because they did not want to run the restaurant themselves. The decision was not made frivolously. The decision to discharge Petitioner was made after an extended period of observation during which they determined, among other things, that Petitioner's daily cash reports for two months were all incorrect. As of October 30, 1986, the restaurant had lost over $100,000.00 and Mr. Oberoi was discharged because he had done a poor job in its operation, had demonstrated a lack of motivation, and appeared to be uninterested in what was going on. He was totally responsible for the operation and the Schoenbaums attribute the financial loss they sustained directly to his inadequate management and operational skills. When the Schoenbaums began to realize they would have to terminate Mr. Oberoi's services, they asked each of the opening managers to write down items they found when they came to work which should have been done the night before. There were many. In addition, the bank utilized by the restaurant had reported that charge slips were not being filled out properly. Sales appeared to be going down. Mr. Oberoi often did not come to work on time and closed the restaurant early, and waitresses were given keys to come in and open up without supervision when it was Petitioner's responsibility to be there. During the three days in August, 1985 that Petitioner was off after his second accident, Mrs. Schoenbaum inspected the facility and found it to be filthy. Food was not stored properly, the refrigerator was dirty, and other defects in operation were clearly obvious. When the Schoenbaums talked with Mr. Oberoi on his return, they relate, he admitted he was not performing properly. They counseled with him, pointing out where he needed to improve and put him on probation. Improvement was not, however, forthcoming. In light of all the continuing deficiencies in Petitioner's performance and considering the fact that the restaurant was losing money, the Schoenbaums decided the situation could not continue and on October 10, 1985, discharged Mr. Oberoi in the presence of Mr. Hershorin. Mr. Schoenbaum confirms Mrs. Schoenbaum's testimony. As he observed it, Petitioner's performance in the beginning was acceptable and they tried to work together as a team to overcome the problems inherent in the start up of a restaurant operation. As time went on, things did not get any better but consistent with his management style, Mr. Schoenbaum tried to allow Petitioner to manage the restaurant without over supervision because he felt Petitioner had the background to get the job done. According to Mr. Schoenbaum, cleanliness, food quality, and the serving of a reasonable product at a reasonable price are paramount considerations in the operation of a restaurant and under Petitioner's management, the restaurant was not meeting those goals. Mr. Schoenbaum began to feel that though Petitioner was trying, he was not succeeding in running a quality operation. From time to time, when Mr. Schoenbaum would come into the restaurant, he would see Petitioner sitting and talking with people rather than managing and supervising. As a result of his concern, Mr. Schoenbaum warned Mr. Oberoi of his dissatisfaction and gave him an ultimatum that the deficiencies must be corrected. Mr. Hershorin, part owner of the restaurant, also confirms the Schoenbaum's observations. Based on his observations and experience in the restaurant business, it was his opinion that Petitioner's operation was not good. Mrs. Schoenbaum asked him to go in and handle the restaurant for the three days Mr. Oberoi was gone in August, 1985. When he did, he found the food in the refrigerator smelled; there was accumulated residue on the racks; food had spoiled; kitchen equipment was not even superficially clean; there was residue on the floor; and in sum, the general housekeeping was poor. Mr. Hershorin was present when the Schoenbaums met with Petitioner to discuss his performance and how the operation could be improved. He felt the Schoenbaums wanted the discussions to be of a positive nature to help Petitioner improve. They told him what needed to be done and put him on probation for a period, and it was clear to Mr. Hershorin that Petitioner understood what was being said to him and his status. Unfortunately, nothing changed as a result of this counseling and ultimately the Schoenbaums had to terminate Petitioner. Petitioner denies any counseling prior to termination or any probationary period being imposed. He claims the Schoenbaums did not discuss his work performance with him at any time, nor did they discuss shortages, lack of proper paper work, erroneous deposits, failure to insure that charge clips were filled out properly, or that he was allegedly leaving equipment on over night. Mr. Oberoi emphatically contends nothing was said about his performance until after he filed his complaint. Both Mr. Schoenbaum and Mr. Hershorin deny knowing that Petitioner had filed a worker's compensation claim or that his discharge was as a result of his incapacitation subsequent to his injury. They contend, as does Mrs. Schoenbaum, and it is found, that Petitioner's injury had no bearing on his termination and his disability was not the cause thereof. Petitioner claims he was never considered disabled prior to coming to work at Baxter's and had never filed a Worker's Compensation claim prior to the ones resulting from his injuries there. A Worker's Compensation Order, introduced by Respondents, however, indicates that Petitioner was injured twice before, in 1983 and 1984, and suffered permanent injury. Admitting this on cross examination, Petitioner contends he was totally recovered at the time of the current injuries and that the worker's compensation form admitting to prior injury was signed at the suggestion of his attorney to facilitate settlement of a collateral lawsuit. Mr. Oberoi also appears to have placed substantial pressure on Mr. Brockway, another employee at the restaurant, to execute a false affidavit. Mr. Brockway claims Mr. Oberoi contacted him so often, he ultimately signed the affidavit merely to be left alone and during the week prior to the hearing, he was again contacted by Petitioner with another affidavit which would indicate that Petitioner was discharged because of his injury. Mr. Brockway declined to sign it. Though Petitioner contends now he is unemployed, he is the principal owner of a corporation which operates a restaurant at Sarasota Square Mall. Mr. Oberoi contends that the work there is done by his family and that he has no part in the operation. This is disputed by Mr. Hershorin who claims to have seen Petitioner behind the counter there on at least two occasions and working in the area on at least three other occasions. Further, when Mrs. Schoenbaum called out there prior to hearing, she was advised to talk with Petitioner who was totally in charge of the operation. Based on the above, Petitioner's credibility is suspect and considering the evidence as a whole, it is found that Petitioner's performance at Baxter's restaurant during the time he was manager there was, for the most part, unsatisfactory. It is that unsatisfactory performance which culminated in his discharge, not the fact that he was injured, filed a worker's compensation claim, or was disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 1st day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of May, 1989. COPIES FURNISHED: Robert D. Turffs, Esquire 1444 First Street Sarasota, Florida 34236 Sue Schoenbaum Vice-President Jady's Inc. 4201 Deepwater Lane Tampa, Florida 33615 Donald A. Griffin Executive Director Florida Commission on Human Relations Bldg. F., Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel FCHR Bldg. F., Suite 240 325 John Knox Rd. Tallahassee, Florida 32399-1925 Margaret Agerton Clerk FCHR Bldg. F., Suite 140 325 John Knox Rd. Tallahassee, Florida 32399-1925
The Issue By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.
Findings Of Fact P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.
The Issue The central issue in this case is whether the Petitioner was terminated from her employment with Caballero's Mexican Restaurant in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent owned and operated a restaurant in Melbourne, Florida known as Caballero's Mexican Restaurant (the restaurant). The restaurant opened in September, 1989 and remained in operation until May, 1990, when it closed and went out of business. Subsequently, the corporation was dissolved. When the restaurant opened, Kenneth Cooper was hired to perform the chef duties for the facility. Mr. Cooper had prior experience in such matters and was retained to be kitchen manager. Mr. Cooper was to hire and train all staff needed to efficiently operate the new restaurant kitchen. One of the individuals Mr. Cooper brought into the kitchen was the Petitioner. The couple had a good working relationship and Petitioner proved to be an excellent worker. Petitioner was made cook and, at all times material to this case, Respondent was pleased with her performance. In December, 1989, Richard Delmar, as president of the Respondent, advised Mr. Cooper that his employment at the restaurant was being terminated. The Petitioner was present when the incident occurred and demanded that Mr. Delmar give good reason for the termination. At that time Petitioner's employment was not terminated but she became upset that her husband's job had ended. Additionally, there was some dispute as to the ownership of personal property in the kitchen and whether Mr. Cooper and Petitioner would leave the restaurant premises. Ultimately, the police were summoned and the Coopers left. Petitioner did not return to work. Caballero's was opened only nine months and did not employ fifteen employees. The restaurant was primarily a family-run venture with the Coopers running the kitchen and the Delmars hosting the seating area. Waitresses and a bartender were also employed by shift.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by Petitioner for lack of jurisdiction. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5275 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent presented a series of proposed facts which were unnumbered. They are addressed below in the order of presentation (paragraphs 1 through 12). Paragraph 1 is rejected as irrelevant. Paragraph 2 is accepted. Paragraphs 3 and 4 are accepted. Paragraph 5 is rejected as irrelevant, hearsay, or not supported by the weight of the evidence. Paragraph 6 is accepted. Paragraph 7 is rejected as hearsay or not supported by the weight of the evidence presented in the case. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as irrelevant. Paragraph 12 is rejected as a conclusion of law. COPIES FURNISHED: Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Jan Cooper 120 Sky Lane Titusville, Florida 32796 Joy Delmar Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Luke Range, d/b/a Flame Bar and Lounge, possessed a 4-COP alcoholic beverage License No. 15-96 for the Flame Bar and Lounge located at 355 Magnolia Street, Cocoa, Florida. Respondent Range purchased the Flame Bar several years ago. At that time, it was known as the Central Bar and, according to community representatives, at the time of purchase, was an extremely bad operation. Since his purchase of the bar, Respondent has upgraded it and gotten rid of many of the problems that plagued it when it was known as the Central Bar. At that time, there were numerous assaults, gambling violations and other offenses frequently conducted on the premises. Several members of the Cocoa Police Department have responded to the Flame Bar for various reasons as a result of disturbance calls and for other similar reasons over the months leading up to the summer of 1983. Many of these individuals, such as Nicholas Blankenship, were in the bar during the month of July, 1983, on several different occasions. Blankenship, for example, entered several times during that month and, each time he entered, he saw people smoking what appeared to be marijuana and smelled what appeared to be the odor of burning marijuana. Though he saw this drug activity, and though he was on duty, he did not make any arrests for drug violations because, in his own terms, it would be "suicidal" for an officer to attempt to make an arrest either by himself or with only one other officer in attendance. Blankenship reported what he had seen to Vice Squad Detectives Mike Blubaugh and Mike Brown. This same situation was described by another Cocoa police officer, John Willingham, who also was in the Flame Bar on several occasions during July, 1983, and clearly saw individuals smoking what appeared to be marijuana or smelled the heavy odor of marijuana. He did not make any arrests, but did report the information he observed regarding drug abuse to the vice squad detectives or the chief of police. Willingham has received anonymous phone calls concerning the sale of narcotics outside the bar. However, when he would arrive there in a marked police vehicle, he would normally not find anyone engaged in that activity. The two vice squad detectives, Blubaugh and Brown, also are familiar with the Flame Bar. In the course of their police work, on several occasions they have been notified of narcotics activity there and, when it was known as the Central Bar more than three years ago, it was known for its drug activity. In the summer of 1983, Blubaugh was given information that there were several drug dealers working both inside and outside the Flame Bar and, according to his information, it was known as a place where drug dealers hang out. He entered the Flame Bar several times during the summer of 1983 accompanied by different officers each time. To his knowledge, there is drug activity both outside the bar and in or around the apartments and pool hall across the street from it. He has on different occasions seen and smelled marijuana in the bar. He has monitored a police officer who was wired for sound and in that exercise heard a sale of narcotics being accomplished there. He has made no arrests for narcotics violations in the bar, nor has he ever seen the Respondent in the bar when drug transactions were taking place. Based on these complaints and others of a similar nature relating to other bars in the area, the chief of police for Cocoa, Florida, met with Jimmie E. Powell, the District Supervisor for District XII, Division of Alcoholic Beverages and Tobacco (which includes Brevard County, Florida) at the Cocoa Police Department and asked for help in investigating narcotics violations in the black community in Cocoa. The Flame Bar was not singled out for specific investigation during this conversation. Pursuant to this request, Maria L. Scruggs, a Division of Alcoholic Beverages and Tobacco agent, entered the Flame Bar at 10:45 p.m. on July 8, 1983. While she was there, she met an individual named Michael Jenkins, from whom she purchased $10 in drugs outside the bar. While inside, she saw what appeared to be widespread smoking of marijuana. She concluded this because of the smell and the method of cigarette rolling that she observed, and she also observed patrons snorting a white, powdered substance which they usually pulled out of tinfoil packets. In her estimation, there were on this occasion between 100 and 150 patrons in the building of whom the majority were engaged in some type of drug activity. On this occasion, she saw a maximum of three employees, two males, one female. She came back to the Flame Bar on July 9 at 9:00 p.m. On this occasion, she met a black female named Gloria Jean, whom she told she wanted to buy cocaine. Gloria Jean introduced Scruggs to a black male named Reagan, from whom she purchased a white, powdered substance, subsequently tested and identified as cocaine. Reagan was not an employee of the bar, but, instead, a patron. After that second buy, since her undercover identification was as a model, she asked Gloria Jean to meet the manager of the bar. This proved to be Willie Cooper, who identified himself to her as the manager and who introduced her to an individual named Sweet Jimmy. Scruggs asked this gentleman if he would sell her a 10-cent piece of cocaine (a 10-cent piece equates to $10, a 20- cent piece to $20, etc.). Sweet Jimmy indicated he did not have any 10-cent pieces, but would sell her a 25-cent piece. Scruggs had seen this individual make sales out of his sock, and she also bought $20 worth of the substance, which was subsequently identified as cocaine. While Scruggs was sitting there, several black males came up and talked with her. While doing so, they engaged in several sales of what appeared to her to be narcotics to other individuals right at the table where she was sitting with Sweet Jimmy. It was her impression that night (July 9) that besides dancing, the general activity of the people in the Flame Bar was either dealing in or using narcotics. On July 15, 1983, Scruggs again entered the bar in the company of Paul Blackmon at 9:30 P.M.. She introduced Blackmon to Cooper as her boyfriend. At this time, she engaged Cooper in a discussion regarding the fashion shows which she, as a "model," desired to bring into the bar. These discussions took place in what Cooper described as his office and, during the conversations, the issue came up regarding the use of narcotics. Scruggs told Cooper she was concerned about bringing a fashion show into the bar because she was afraid of a raid. Cooper told her at this time not to worry, that the police had a deaf ear to any narcotic activity there. She asked Cooper if cocaine was available, and he said it was. At this point, Blackmon and Scruggs went over to the bar and, shortly thereafter, Cooper came up to Blackmon and gave him a package for which Blackmon paid Cooper some money. Cooper put this money into his pocket and then went back to tending bar. The substance received from Cooper by Blackmon that night was subsequently tested by the laboratory at the Florida Department of Law Enforcement and determined to be cocaine. Scruggs and Blackmon came back again the following night, July 16, at approximately 8:55 P.M.. When they entered, they saw patrons snorting what appeared to be cocaine and smoking what appeared to be marijuana. Upon entering, they went directly to the bar, where Blackmon talked with a black male named Gillaman, who was the relief bartender. On this occasion, Cooper was not present when Scruggs and Blackmon entered, but did come in within a few minutes thereafter. Blackmon asked Cooper if he could get any coke like he had gotten the night before. Cooper immediately left the area and shortly thereafter came back with a tinfoil package for which he got money from Blackmon. This substance was also subsequently identified by the Florida Department of Law Enforcement as cocaine. Scruggs had met Respondent at another club during this period and states she had talked to him at the bar about the modeling shows mentioned previously. Respondent advised her she would have to talk to Mr. O. P. Smith about it, giving her Smith's phone number to contact him. The one call she made, however, did not get through. During the conversation she had with Respondent, she used her undercover name of Cynthia. Respondent denies that the conversation with Scruggs ever took place, further denying that he has ever met her. The equipoise of this situation is somewhat abated, however, when one considers the probability of the evidence. It is unlikely that Scruggs would make up a story as detailed and as complex as she has. On the other hand, it is quite likely that Respondent would not recall a particular conversation of several months previously regarding a subject as mundane as a modeling show with an individual he met only once. Therefore, weighing the evidence, it is more likely that Ms. Scruggs' version prevails and that, in fact, she and Respondent did meet. Blackmon returned to the bar one other time, on July 20, 1983. On this occasion, he talked with an obvious juvenile who identified himself as "Cookie" and who he asked if he could get cocaine. This juvenile went over to another man identified as Juan Cidbury, from whom he got a package and returned to Blackmon. Blackmon purchased this substance, which was subsequently identified upon laboratory analysis as cocaine, and during the entire time, Cooper was standing behind the bar and observing the transaction. Neither Blackmon nor Scruggs ever saw Respondent, Luke Range, on the premises of the Flame Bar when they were there. Willie Cooper, who is presently unemployed, worked for the Respondent at the Flame Bar for approximately a year and a half up to July of 1983, when he was fired by the Respondent, who found out about the investigation that was going on. Cooper was subsequently arrested on charges arising out of the alleged sales of cocaine described herein and was found guilty on at least one charge. The Flame Bar was open until 2:00 a.m. Cooper's immediate supervisor was O. P. Smith, who would come in three or four times a day. Respondent would come into the bar once or twice a day, mostly in the mornings. Cooper knew that some of the patrons smoked or used narcotics on the premises, but he never reported these problems or these incidents to the Respondent. His instructions were to stop any drug activity immediately, either by directing the offender to leave, or, in the event the offender failed to do so, by calling the police. Cooper has frequently called the Cocoa Police Department because of disturbances at the bar, but admittedly has never done so because of drug offenses. Respondent had indicated to Cooper that he did not want drugs in the bar. As a result, neither Cooper nor any of the other bartenders at the Flame Bar kept drugs on the premises or dealt in drugs there. In this case, he got the drugs for Scruggs and Blackmon because she, Scruggs, asked him to do so and he liked the way she looked. He got the cocaine that he sold on these occasions from outside the bar from individuals in the area. The cocaine, however, was not kept in the bar until he brought it in for the immediate sale. Oliver Smith works for Respondent as general manager of both the Flame Bar and the 20-Grand bar and has done so since 1980. His office is in the 20- Grand, which is located approximately a mile from the Flame Bar. During the normal business day, he starts at the Flame Bar, staying there for two or three hours, then goes to the 20-Grand. During the day, he goes back and forth between the bars several times. He did not have any knowledge of Cooper having drugs on the premises or of Cooper having any drug problems or in fact any problems with the law before this incident. He has never seen drugs used in the Flame Bar; he has smelled marijuana, but has never seen it smoked there; and he claims he is usually there during the busy times. He has not discussed the issue of drugs with the Respondent because he did not see that drugs in this bar were a problem. He has continued to instruct his bartenders to ask drug users to leave and, if they did not, to call the police. Since these incidents took place in July, 1983, management has hired several more people to work at the Flame Bar to keep out drugs. They have also added more lights to the place to brighten up the area. Numerous individuals personally testified for Respondent, including such responsible persons as Nathaniel Hooks, a Lieutenant in the Cocoa Police Department who has been with that department for 17 years. He recalls the Flame Bar when it was known as the Central Bar and, at that time, it was considered a bad place for drugs. However, since Respondent has taken over ownership, there has been a tremendous decrease in the number of police calls to the area and a marked increase in its beautification. Hooks himself has been in the Flame Bar at various times and has never seen drug activity in there. To his knowledge, there have been no drug arrests at the Flame Bar within the past year by people under his supervision and, according to his understanding, the police department has not complained to Respondent about his establishment. To the contrary, it is Hooks' understanding that Respondent came to the former chief of police back sometime prior to this investigation in an attempt to get more police coverage in the area for several reasons, one of which was not drugs. Both Willie Cooper and the Respondent have good records with the police department and have not been in any difficulty whatsoever. Of the 91 calls logged by the Cocoa Police Department from the period November 26, 1982, through June 30, 1983, there were no calls for alleged drug violations. Hooks admits to being a friend of the Respondent over a period of years. He owns and operates a security company in his off-duty time in Cocoa from which the Respondent contracts for security for the 20-Grand bar. He also provided security for a former club owned by the Respondent. He has contracts with eight other businesses to provide security. Leon Collins, a former city councilman in Cocoa from 1973 to 1983, has been a friend of the Respondent for 18 years or so and has known him through his. activities with several civic organizations. Respondent has an outstanding reputation in the area and has contributed greatly to city and civic organizations, as well as to churches and youth organizations. Collins goes into the Flame Bar about once a month to have a drink. He has never seen anyone in the Flame Bar smoking or using drugs. Robert Manning, the Principal of Poinsett Middle School in Cocoa, which is located about six to seven blocks from the Flame Bar, has known the Respondent for approximately 14 to 15 years. When he, Manning, was Vice Chairman of the Human Relations Commission in Titusville, Florida, on one occasion, Respondent came to speak to that organization in support of the Commission's position on Project 235 housing. At that time, Respondent was a builder building Project 235 housing in Central and South Brevard County. Respondent was also a participant with NASA and Brevard Community College in forums on minority business opportunities. Respondent is a big supporter of his school and has raised money for it. Respondent also contributes to civic and humanitarian causes in the community, and Mr. Manning is certain that Respondent would not condone any illegality in any of his businesses. He sees Respondent as a clean liver personally who has made a tremendous difference in cleaning up the old Central Bar. The Principal of Cocoa High School, Richard Blake, is also the Chairman of the Rockledge City Council, on which he has served for 10 years. He has known Respondent well for 12 to 13 years, after Respondent came to the Cocoa area from Detroit and lived with Blake's parents for a while. He knows Respondent to be very active in civic affairs. Respondent was the witness's campaign treasurer at one time and has a very high reputation in the business, lay and church communities. He always supports activities for underprivileged children and has an upright character and high principles. Respondent has a reputation as a builder, not a destroyer, and Mr. Blake has seen significant positive changes in both the 20-Grand club and the Flame Bar since Respondent has been involved with them. In his opinion, Blake feels Respondent would take immediate and direct corrective action if he knew drugs were being used in his club. This sentiment is also held by Barbara L. Jenkins of Cocoa, a teacher/counselor of adult education at Brevard Community College who knows the Respondent through his community activities. Ms. Jenkins feels the Respondent is unique in that he is interested in the total community and will do all he can for the community or get it done if he cannot do it himself. He supports programs both for children and the elderly, and his general reputation in Cocoa, as she knows it, is as an advisor to work hard to reach goals. In her opinion, Respondent would not condone drugs in his establishment. She feels that if Respondent is guilty of anything, it is of being too trusting. Ricardo Davis is a member of the executive board of the local NAACP chapter and was its president during 1983. 59 far as is his knowledge, neither the NAACP nor the City of Cocoa prompted an investigation of the Flame Bar in particular because of drug activity in that establishment. Mr. Davis has known Respondent for ten years and considers him as one of the leading black businessmen in the community whose character is above reproach. He does not believe Respondent would condone drugs in his premises. These sentiments and sentiments similar thereto are expressed in the 23 testimonial letters submitted by Respondent from diverse people, including business leaders, professional people, ministers, law enforcement officers, educators and the like. Without question, it is obvious that Respondent has an excellent reputation in the community for honesty, integrity, square dealing and high business and personal scruples. In his own testimony, Respondent indicated he was not aware that anything close to the type of activity described in the testimony here was going on. His manager, Smith, had told him there were drug problems in the general area, and he had asked the police department for help in policing the area, but he had no idea any of it was going on in his establishment. Cooper did not talk to him about drug activity, either. It was Respondent's continuing instruction to his employees that if anyone was illegally using narcotics, to put that individual out, and if the individual refused to go, to call the police. Neither the police nor the Division of Alcoholic Beverages and Tobacco ever contacted him about drug problems prior to the investigation, a fact which is admitted by representatives of both agencies. Respondent went to the Flame Bar three to four times a week at different times of the day, normally, however, before 8:00 P.M.. He never saw any drug activity of any kind at anytime that he went in there, nor did his bartenders ever tell him of any going on. In short, no agency, including the police, the Division of Alcoholic Beverages and Tobacco, the sheriff's office, and the city council (he knew and met with several councilmen on a repeated basis) , ever told him there was any problem with drugs in his establishment or interest in his area. His first knowledge of this investigation was when the beverage agents called him to their office and told him what had happened. He immediately thereafter fired Willie Cooper, who had never given any indication over the three years he had worked for Respondent that he used or had any connection with drugs. In efforts to reduce the potential for drug activity, as was previously referenced by Smith, Respondent has cut hours of operation for the Flame Bar to six hours per day, has increased lighting in the place and has employed security guards at the Flame Bar to work directly for him, a situation he has had in effect since 1979, when he first took the bar over.
Recommendation That Respondent's license be suspended for ninety (90) days and that he pay a fine of $1,000.
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
