The Issue Whether Respondent committed the violation alleged in the Administrative Complaint dated June 4, 2012, and, if so, what disciplinary action should be taken against Respondent?
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (DBPR), is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, Matthews, located at 2107 Hendricks Avenue, Jacksonville, Florida 32207, holding Food Service license number 2612238. Emily Pudoff is employed by DBPR as a Sanitation and Safety Specialist in DBPR's Jacksonville office. Inspector Pudoff has worked for DBPR for approximately two-and-a-half years. Prior to working for DBPR, Inspector Pudoff was a server at Ruby Tuesday. Upon gaining employment with DBPR, Inspector Pudoff was standardized on the Food Code and trained on the laws and rules pertaining to public food and lodging establishments. Inspector Pudoff is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points. Inspector Pudoff performs approximately eight hundred inspections a year. Petitioner's second witness, Iliana Espinosa-Beckert, is also employed by DBPR as a Sanitation and Safety Specialist in the Jacksonville office. Inspector Espinosa-Beckert has worked for DBPR for approximately five years. Upon gaining employment with DBPR, Inspector Espinosa-Beckert was standardized on the Food Code and trained in the laws and rules pertaining to public food and lodging establishments. Inspector Espinosa-Beckert is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points. Inspector Espinosa-Beckert performs approximately six hundred inspections a year. Critical violations are violations that are more likely to contribute to contamination or an illness or an environmental health hazard. Non-critical violations are less likely to contribute to contamination or illness or an environmental health hazard. On June 28, 2011, Inspector Pudoff performed a "standardization inspection"2/ of Respondent, Matthews restaurant. During the inspection of Matthews, which lasted three hours and 55 minutes, Inspector Pudoff prepared and signed an inspection report setting forth the violations she observed during the inspection. Relevant to the issue to be determined in this proceeding, Inspector Pudoff observed potentially hazardous food cold not held at 41 degrees Fahrenheit or below. Specifically, Inspector Pudoff observed Italian ham at 53 degrees Fahrenheit,3/ and soft cheese4/ at 53 degrees Fahrenheit in a reach-in cooler. At the conclusion of the June 28, 2011, visit, Inspector Pudoff informed Respondent about the violations she had observed. Respondent's representative signed the inspection report, acknowledging receipt of the report. Also, at this time, Inspector Pudoff made the Respondent aware that all violations noted during the inspection needed to be corrected by August 29, 2011. On May 18, 2012, Inspector Espinosa-Beckert performed a routine food service inspection of Matthews. During this inspection, Inspector Espinosa-Beckert prepared and signed an inspection report indicating that some of the violations noted on the June 28, 2011, inspection report had not been corrected. Specifically, two cold food items were found to be at temperatures in excess of 41 degrees Fahrenheit. Those items were cooked onions and tomatoes at 47 degrees Fahrenheit in the prep area, and cheese at 50 degrees Fahrenheit in the prep area. At the conclusion of the May 18, 2012, inspection, Inspector Espinosa-Beckert notified Respondent of the repeat violations. The report indicated that Inspector Espinosa- Beckert was recommending that an administrative complaint be filed against Matthews based on a repeat temperature violation. Respondent's representative signed the inspection report, thereby acknowledging receipt of, but not the accuracy of, the report. Marshall Brown is the manager of Matthews, and was present during the second inspection. Manager Brown testified that Inspector Espinosa-Beckert incorrectly identified the onions and tomatoes as being cooked, when they were actually uncooked. Mr. Brown credibly testified: I confirmed that the onions and tomatoes were uncooked, but as you stated earlier, they were in a marination process with olive oil, fresh herbs and vinegar. So like you said, it looked like they were cooked, but it does —- it’s deceiving because when, you know, they’re soaking in those, they tend to break down and look like they’re cooked. But it’s an uncooked, room-temperature or cold salad that goes on top of a fish preparation. Uncooked vegetables are non-potentially hazardous and do not need to be cold held at 41 degrees Fahrenheit or below, while cooked vegetables are potentially hazardous and must be cold held at 41 degrees Fahrenheit or below. In this instance, the more credible testimony established that the onions and tomatoes were uncooked, and therefore did not need to be held at 41 degrees Fahrenheit or below. The second food alleged to have been out of compliance during the second inspection was a soft cheese, identified at hearing as Mozzarella, located in the food preparation area. Inspector Espinosa-Beckert reported the temperature of the approximately two-inch thick piece of cheese to be 50 degrees Fahrenheit. However, Manager Brown testified that he and the restaurant's chef personally checked the temperature of the cheese 10 to 15 minutes after Inspector Espinosa-Beckert, and they recorded the temperature at 40 degrees. Although additional ice had been added adjacent to the pan in which the cheese was located, Manager Brown testified that based upon his more than 20 years’ experience in the restaurant business it would have taken at least an hour to drop the temperature of the cheese by 10 degrees had the cheese actually been at 50 degrees as reported by Inspector Espinosa-Beckert. This testimony was unrebutted by Petitioner. Matthews is extremely diligent in complying with food temperature standards, and has systems in place to ensure that those standards are met. For example, the restaurant's coolers are equipped with “instant-read” thermometers. The cooler temperatures are monitored daily and those temperatures are recorded on a daily log. Preventive maintenance is performed on the coolers monthly to ensure their proper functioning. The facts adduced at hearing do not clearly and convincingly establish that the temperatures of the two food items cited in the May 18, 2012, inspection were out of compliance with Rule 3-501.16(A), Food Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order that finds Respondent not guilty as charged in the Administrative Complaint. DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 31st day of January, 2013.
Findings Of Fact Petitioner is a horse trainer licensed in the State of Florida and holds Occupational License No. L-25378. Respondent is a division of the Department of Business Regulations, and is charged by law with regulatory authority over Florida's pari-mutuel wagering industry. On December 12, 1979, Respondent issued a Notice to Show Cause, seeking to revoke Petitioner's occupational license, alleging that Petitioner had violated Rules 7E-4.25(12)(a), 7E-4.05 and 7E-4.25(13), Florida Administrative Code. Simultaneously with the issuance of the Notice to Show Cause, Respondent issued an Emergency Order indefinitely suspending Petitioner's occupational license. The Notice to Show Cause alleged that Petitioner was the trainer of the horse Hanker Chief who ran in and won the ninth race at Tourist Attractions (Pompano Park) on November 28, 1979, and that a urine sample taken from the horse and analyzed by Respondent was shown to contain butorphanol, which was alleged to be a narcotic agonist-antagonist, analgesic. An Amended Notice to Show Cause alleged that butorphanol was a "narcotic agonist - antagonist, analgesic" and was also a "narcotic and a depressant." Subsequently, a Second Amended Notice to Show Cause alleged that butorphanol was a "narcotic agonist - antagonist analgesic" and also a "depressant or stimulant." The subject matter alleged in the Notice to Show Cause, as amended, is presently pending before the Division of Administrative Hearings in Division of Administrative Hearings Case No. 80-817.
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated January 4, 2006, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public food service establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Pepe's was licensed by the Division as a public food service establishment under license number 1616814; was located at 41 Northeast 44th Street in Ft. Lauderdale, Florida 33060; and was operated and owned by Joseph Trujillo. At all relevant times, Michele Lynn Schneider (Ms. Schneider) was employed by the Division as a sanitation and safety inspector. Ms. Schneider's duties include conducting inspections of Division licensees, including Pepe's. On or about November 16, 2005, Ms. Schneider conducted a routine inspection of Pepe's. Based upon her inspection she documented various sanitation and safety violations and issued a written warning to Pepe's which directed that the violations be remedied within 30 days. On December 22, 2005, Ms. Schneider returned to Pepe's to conduct a re-inspection. Her re-inspection revealed that violations documented at the time of the re-inspection had not been remedied. Violations observed by Ms. Schneider at both the inspection and the re-inspection were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety. The violations observed and documented by Ms. Schneider at the inspection and again at the re-inspection were: Violation 08A-28-1, based upon Ms. Schneider's observation that food was stored five inches above the floor. Food stored less than six inches above the floor is at risk of contamination. Violation 10-8-1, based upon Ms. Schneider's observation of an ice scoop handle in contact with ice in an ice storage container. Utensil handles such as scoop handles which come in contact with employees' hands and are then placed in food or other consumables pose a risk of cross- contamination. Violation 12A-03, based upon Ms. Schneider's observation that employees failed to wash their hands in between changing food preparation tasks and/or between handling food and handling money or other non-sanitary items. Failure to wash hands between such tasks poses a risk of cross-contamination. Violation 31-07-1, based upon Ms. Schneider's observation that there was no dedicated hand washing sink in the dishwashing area. To avoid risk of cross- contamination, handwashing sinks must be located in the dishwashing area and must be used strictly for handwashing. Sinks used for multiple purposes pose a risk of cross- contamination. Violation 31-08-1, based upon Ms. Schneider's observation that there was no hand washing sink in the food preparation area. To avoid risk of cross-contamination, handwashing sinks must be located in the immediate vicinity of the food preparation area. Violation 12B-03, based upon Ms. Schneider's observation of an employee drinking from an open beverage container in a food preparation area. Ms. Schneider later observed the same beverage container next to kitchen utensils. Should the drink spill and the contents come in contact with food or utensils, cross-contamination may occur. Ms. Schneider was the only witness at the hearing. Her testimony with regard to the material allegations of the Administrative Complaint was credible, and was unrebutted by Pepe's.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Pepe's in the amount of $5,500, due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Pepe's to attend, at the licensee's expense, an educational program sponsored by the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 22nd day of September, 2006.
Findings Of Fact On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser. The Respondent's Retirement Residence has a license for 13 or more residents. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.
The Issue Respondent's alleged violation of Section 477.02(6), Florida Statutes. Upon Motion of Petitioner, the name of the President of Respondent firm as shown in the Administrative Complaint was amended to reflect his correct name, Alfred Ditraglia.
Findings Of Fact Respondent Corporation holds Certificate of Registration Number 21624 to operate a cosmetology salon which was issued on May 8, 1975, by Petitioner. (Stipulation). On July 15, 1975, Petitioner's inspector visited Respondent's place of business and observed Carmen Victoria Jackson washing a customer's hair. On July 29, 1975, he observed her doing the same thing. She had informed him on July 15th that she had no state license. On July 29th she told him that the shampoo girl had not shown up for work and that is why she was washing a customer's hair. (Testimony of Rubin). At the hearing, the employee testified that she had not been shampooing on either occasion mentioned by Petitioner's inspector. She asserted that on July 15th a customer had merely asked her to pass a towel to her and that while she was doing so the Inspector entered the store. She claimed that on July 29th although customers were in the store, she was not working on them, but was merely taking towels to the back of the premises to wash them. (Testimony of Jackson).
Recommendation That Respondent's Certificate of Registration Number 21624 to operate a cosmetology salon be suspended for a period of 30 days under the authority of Section 477.15(8), for violation of Section 477.02(6), Florida Statutes. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Alfred Ditraglia, President Al Stephens, Inc. 425 Hollywood Mall Hollywood, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA STATE BOARD OF COSMETOLOGY IN RE: FLORIDA STATE BOARD OF COSMETOLOGY, Petitioner, vs. CASE NO. 76-1053 SALON LICENSE NO. 21624 ALFRED DITKOGLIA, PRESIDENT, AL STEPHENS, INC., Respondent. / FINAL AGENCY ORDER The Florida State Board of Cosmetology adopts as part of the Agency's Final Order the conclusions of law, interpretation of administrative rules and findings of fact dated July 28, 1976, a copy of which is attached hereto and incorporated herein by reference. The State Board of Cosmetology, having reviewed the recommended penalty of the hearing examiner and considering the circumstances of this case, the State Board of Cosmetology feels that the recommended penalty is appropriate and therefore adopts the recommended penalty and imposes a suspension of the salon license of the Respondent for a period of thirty (30) days. That the suspension shall be effective beginning on the first day of October, 1976, and shall terminate on October 30, 1976. That the Respondent shall deliver its license no. 21624 covered by this suspension by certified mail, return receipt requested, prior to the effective date of the suspension and the said license will be available for re-delivery to the Respondent at the State Board Administrative Office, 301 Avenue A, Southwest, Winter Haven, Florida, or will either he mailed at the option of the Respondent on the last day of the suspension period. ENTERED this 27th day of August, 1976. Violet Llaneza, Chairman Florida State Board of Cosmetology Copies Mailed To: Alfred Ditkoglia, President Al Stephens, Inc. 425 Hollywood Mall Hollywood, Florida Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida =================================================================
The Issue The issue in this case is whether the allegations of the Amended Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Tillie’s Twistee Treat, Inc., d/b/a Tillie’s Twistee Treat (Respondent) are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, the Respondent was operating as a licensed food service establishment located at 16801 East Colonial Drive, Orlando, Florida, 32820. The Respondent sells an ice cream product. On December 2, 2015, Maelyn Arroyo, a Sanitation and Safety Specialist employed by the Petitioner, performed an unannounced routine inspection of the Respondent, during which she observed various violations of the Code. At the conclusion of the inspection, Ms. Arroyo prepared a written report documenting the Code violations she had observed. Before leaving the premises, Ms. Arroyo provided a copy of the inspection report to Kathy Collins, identified on the report as the manager of the Respondent. According to the inspection report, the cited code violations were to be corrected by 8:00 a.m. on December 9, 2015, at which time a “callback” inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On December 9, 2015, Ms. Arroyo returned to the Respondent’s location to conduct the callback inspection. At that time, Ms. Arroyo observed that many, but not all, of the Code violations observed during the routine inspection had been corrected. At the conclusion of the callback inspection, Ms. Arroyo prepared a written report documenting the uncorrected Code violations. Before leaving the premises, Ms. Arroyo provided a copy of the inspection report to an employee identified as Amanda Sanchez, who was present at the time of the inspection. Ms. Arroyo also recommended that administrative charges be filed against the Respondent for the uncorrected violations. The Code classifies violations as either “high priority,” “intermediate,” or “basic,” essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat of causing food borne illness to a person who consumes the product. The violations cited herein are high priority violations because the failure to maintain the product at or below the required temperatures can result in bacteria growth that can cause food borne illness in persons who consume the product. The Respondent’s ice cream product can be potentially hazardous if not maintained at the required temperature prior to service. In relevant part, Code Section 3-501.16(A)(2) requires that potentially hazardous food must be maintained at 41 degrees Fahrenheit or less, except during preparation, cooking, or cooling. At the time of the routine inspection on December 2, 2015, Ms. Arroyo determined that the temperature of chocolate ice cream mix held in the front line ice cream machine was 54 degrees, and that the temperature of vanilla ice cream mix held in the front line ice cream machine was 51 degrees. Other flavors of ice cream mix tested by Ms. Arroyo apparently met temperature requirements. At the time of the callback inspection on December 9, 2015, Ms. Arroyo determined that the temperature of chocolate ice cream mix held in the front line ice cream machine was 50 degrees, and that the temperature of vanilla ice cream mix held in the front line ice cream machine was 43 degrees. Ms. Arroyo also determined that the strawberry ice cream mix was 42 degrees. Ms. Arroyo testified that she calibrates her thermometer on a daily basis prior to beginning her assigned inspections. Ms. Arroyo testified that on December 9, 2015, she tested the calibration of the thermometer used by the Respondent to maintain the appropriate food temperatures and discovered that the Respondent’s thermometer was not properly calibrated. A properly calibrated thermometer should provide a temperature reading of 32 degrees when subjected to an ice water calibration test. According to Ms. Arroyo, when she performed an ice water calibration test on the Respondent’s thermometer, the thermometer indicated that the temperature of the water was 28 degrees. Accordingly, the Respondent’s thermometer was indicating that the product being tested was four degrees lower than the actual temperature of the product.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a Final Order imposing a fine of $250 against the Respondent. DONE AND ENTERED this 20th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of May, 2016.
The Issue The issues in this proceeding are whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act, and whether Petitioner’s Complaint of Employment Discrimination was timely filed.
Findings Of Fact Respondent operates a retail store located in Panama City Beach, Florida. At the time, William Todd Collins was the store manager. Petitioner is female. Around October 2011, Petitioner was first employed with Respondent in Puerto Rico as a jewelry sales expert, Level II. In October 2012, she transferred to Respondent’s Panama City Beach store as a Level II, jewelry sales expert. Towards the beginning of August 2013, Petitioner learned that she was pregnant. Shortly thereafter, she started displaying symptoms of her pregnancy and experienced dizziness from not eating due to her pregnancy. She was terminated on October 25, 2013. During her employment with Respondent, Petitioner performed her duties well and was not disciplined by Respondent until the incident that led to her termination. Additionally, the evidence demonstrated that Petitioner’s pregnancy was accommodated by allowing her breaks and to sit down as needed. She was also allowed to eat snacks as needed. On October 22, 2013, the store had closed for the evening. Petitioner and other sales associates were putting merchandise away and closing down the registers throughout the store. While standing at one of the sales counters, Petitioner was feeling dizzy from not eating, picked up a Godiva chocolate bar from the store’s inventory, and began to eat it. The Department Supervisor Mindy Watson saw her eating the chocolate bar and asked Petitioner what she was doing. Petitioner responded, “what does it look like I’m doing. I’m eating a candy bar.” Thereafter, Ms. Watson told Petitioner she needed to pay $4 for the chocolate bar. A discussion about the price of the chocolate bar ensued but, contrary to Petitioner’s claim that she offered to pay for the chocolate bar, the evidence showed that she did not offer to pay for the chocolate bar. The evidence was clear that it would have been easy to open a sales register so that Petitioner could pay for the chocolate with her credit card, which she had with her. Instead, Petitioner walked away from Ms. Watson and said she was going to place the wrapper in the vault as a reminder to pay for the candy bar. When Petitioner walked away with the chocolate bar, Ms. Watson informed Human Resources Supervisor Kelly Black about Petitioner not paying for the chocolate bar. At about the same time, Ms. Black approached the area where Petitioner was and saw Customer Service Specialist Pamela Wells also approaching the same area. Ms. Black heard Ms. Wells say to Petitioner, “oh you have chocolate,” to which Petitioner responded, “yes, and I stole it.” Once all the associates were gone for the day, Ms. Watson and Ms. Black checked the vault and the Fine Jewelry trash cans, but could not find the chocolate wrapper. Ms. Black called Mr. Collins that night and reported the incident. Additionally, both Ms. Black and Ms. Watson sent an email to Mr. Collins detailing these events. The day after the incident, Mr. Collins began an investigation. During the investigation, he interviewed Ms. Watson and Ms. Black, as well as other associates who were working the evening of October 22, 2013. Mr. Collins also learned that Petitioner was seen eating a Godiva chocolate bar from the store’s inventory several weeks before the October 22, 2013, incident. With that report, Mr. Collins checked Petitioner’s associate files to see whether she had purchased any chocolate over the last three months and to determine if she had purchased the chocolate bar from October 22, 2013. There was no record of Petitioner paying for any chocolate. On October 25, 2013, at 9:30 a.m., Petitioner returned to work. She did not pay for the chocolate bar either before or during her shift, even though, contrary to her claim at hearing that she could not pay for the chocolate during work, she had the ability to do so. After she did not pay for the chocolate bar during her shift, around 3:30 p.m., Sarah Menchaca, the manager on duty, told Petitioner that Mr. Collins, the store manager, wanted to speak to her. Petitioner went into Mr. Collins’ office and was terminated due to Misuse of Property/Assets. At the time of her termination, Petitioner signed dismissal papers agreeing to a summary of the events on October 22, 2013, and the reason for her termination. The dismissal papers did not mention Petitioner’s pregnancy and dizziness as the reason she took the candy bar. However, at the same meeting, Petitioner also wrote another two-paged detailed statement where she mentioned her pregnancy, the dizziness, and the fact that she had not eaten for hours. As indicated, Petitioner was terminated on October 25, 2013, and clearly was aware she had suffered an adverse employment action on that day. Thereafter, Petitioner obtained a Technical Assistance Questionnaire from FCHR. The questionnaire makes it clear on page 1 that it is not a substitute for filing an actual complaint with FCHR in a timely manner. It states, “REMEMBER, a charge of employment discrimination must be filed within 365 days of the alleged act of discrimination”. (emphasis in original). In this case, it is clear that Petitioner’s complaint was filed with FCHR on October 27, 2014, 367 days after she was terminated by Respondent. As such, her claims are time-barred and should be dismissed as a matter of law. Even assuming that Petitioner’s complaint was timely, the better evidence establishes that Respondent terminated Petitioner’s employment after a reasonable investigation determined that she took a Godiva chocolate bar from inventory and failed to pay for it. Petitioner provided no testimony or other evidence that other store personnel were allowed to take chocolate bars and not pay for them or that such individuals were not terminated for theft. Additionally, there was no evidence that Respondent discriminated against women who were pregnant or had difficult pregnancies. In fact, the evidence showed that Respondent employed pregnant women and made accommodations for such pregnancies when needed. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final order finding Respondent not guilty of discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 21st day of October, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2015. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Merrill W. Daily, Esquire JC Penney Headquarters Mail Station 1111 6501 Legacy Drive Plano, Texas 75024 Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Derek Benjamin Lipscombe, Esquire JC Penney Corporation 6501 Legacy Drive, MS 1108 Plano, Texas 75024 (eServed) Cheyanne Costilla, General Counsel Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 10-GM-223 CERTIFICATE OF FILING AND SERVICE a a VEE NG AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished in the manner indicated to each of the persons listed ch below on this 23 © aay of November, 2010. Py 2 i AN Paula Ford Agency Clerk By E-File: The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail: Brian W. Haas . City Attorney, City of Frostproof P.O. Box 1260 Lake Wales, FL 33859 BrianHaas@aol.com Tom Schotman, Registered Agent/President Defenders of Crooked Lake, Inc. 1430 North Crooked Lake Drive Babson Park, Florida 33827 tbschotman@aol .com Lynette Norr Assistant General Counsel Department of Community Affairs Lynette .Norré@dca.state.fl.us STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and DEFENDERS OF CROOKED LAKE, INC., Intervenor, vs. Case No. 09-2405GM CITY OF FROSTPROOF, Respondent.
