Findings Of Fact Respondent is a non-instructional employee of Petitioner. Respondent is employed by Petitioner in its food services division. Respondent sustained an injury to her lower back on or about April 21, 1994, within the scope of her employment with Petitioner. Respondent reached for a box in an overhead location and fell backward onto her buttocks. She complained of discomfort in her lower back. Dr. Thomas J. Brodrick treated Respondent for her injury. The course of treatment included a magnetic resonance image ("MRI") and two electromyographic studies ("EMGs"). On January 26, 1995, Dr. Brodrick discharged Respondent from his care. Dr. Brodrick determined that Respondent has no physical impairment and no permanent disability. After January 26, 1995, Respondent failed to return to work. By letter dated February 3, 1995, Petitioner directed Respondent to report to work on February 8, 1995. In the same letter, Petitioner notified Respondent that she would be terminated from her employment if she did not report to work. On March 28, 1995, Respondent was evaluated by Dr. Urbach. Dr. Urbach examined Respondent, reviewed the records of Dr. Brodrick, and reviewed the MRI and EMG results. Respondent is physically capable of returning to work. Respondent has degenerative disk disease at levels L-1-2 and L-2- 3. Respondent's complaints are caused by functional overlay, or secondary gain motives, rather than by a physical impairment or permanent disability. On March 28, 1995, the Florida Department of Labor and Employment Security, Division of Workers' Compensation, issued a Notice of Claimant Disability Status. The notice determined that Respondent is able to return to work without restrictions. Since January 26, 1995, Respondent has been physically able to return to work without restrictions. Respondent failed to return to work after January 26, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from her employment. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995. COPIES FURNISHED: Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771 Ned N. Julian, Esquire Director of Legal Services Seminole County Public Schools Post Office Box 1358 Sanford, Florida 32772-1538 Teresa Rynczak, pro se 1006 Aviles Court Oviedo, Florida 32765
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated March 8, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact The Division is the state agency charged with regulating the operation of public lodging establishments and public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a restaurant operated under License Number 5807590 at 5731 South Orange Blossom Trail, Orlando, Florida 32839. El Valle Restaurant, Inc., is the owner of the restaurant. PE 1. Petitioner's employees inspected Respondent's premises on March 19, August 6, September 24, and December 3, 2009, and February 16, 2010. During these inspections, numerous violations were seen and incorporated into separate Food Service Inspection Reports for each of these dates. Several follow-up inspections were conducted during these times and noted violations had not been corrected, which ultimately led to the filing of the Administrative Complaint. PE 1-6; T 33-34. Petitioner's witnesses characterized several violations as "critical violations" such as inadequate hand washing; the use of unclean cutting boards; hot water turned off at the only kitchen hand sink; undated potentially hazardous ready–to-eat– food held over 24 hours; improper drainage of raw sewage; the three compartment sink not used in the correct order (wash, rinse, and sanitize) and no hot water used at the mop sink; and a lack of a chemical test-strip kit available to verify the concentration of chemicals at the manual ware washing area. See, e.g., T 16-19, 34-44, 47-48. Critical violations are those that will significantly contribute to food contamination, illness, or health hazards. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(a) for a definition of "critical violation." Other non-critical violations included the lack of a plan review submitted and approved for renovations that were in progress and the unavailability of a choking sign. See, e.g., T 44-50. Non-critical violations are those that are not as likely to significantly contribute to those hazards mentioned above. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(b) for a definition of "non-critical violation." Petitioner's Composite Exhibit 7 includes a certified copy of a Final Order on Waiver entered by the Division on June 27, 2008. T 50. This order resolved the allegations in an Administrative Complaint filed against Respondent on April 8, 2008, alleging violations of provisions of chapter 509, Florida Statutes. This order indicates that Respondent did not respond to this Administrative Complaint. Petitioner assessed Respondent an administrative penalty of $1,000, and Respondent was also required to attend a workshop sponsored by the Hospitality Education Program. This order was offered into evidence solely for the purpose of consideration of an increased penalty pursuant to Rule 61C-1.005(7)(a) if the underlying charges were proven. T 50. The allegations in the Administrative Complaint, as found herein, were proven by clear and convincing evidence.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order, which confirms the violations found and imposes on El Valle Restaurant an administrative fine in the amount of $3,500. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011.
