21-001409 Vanessa Puccini vs. Brooks Burger Status: Closed Recommended Order on Thursday, August 5, 2021.

Summary: No jurisdiction. Petitioner failed to establish that business employed more than 12 employees when alleged discrimination occurred. Petitioner failed to establish facts supporting her discrimination claim.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

V ANESSA P UCCINI ,

Petitioner ,

vs. Case No. 21 - 1409

B ROOKS B URGER ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to noti ce, the final hearing was conducted in this case on

June 28, 2021, via Zoom teleconference from Tallahassee, Florida , before

Lynne A. Quimby - Pennock, a duly - designated Administrative Law Judge

(ÑALJÒ) of the Division of Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Petitioner: Vanessa Puccini , pro se

Apartment 517

4680 Saint Croix Lane

Naples, Florida 34109

For Respondent: Thomas K . Rinaldi, Esquire

Bond, Schoeneck & King, PLLC

4001 Tamiami Trail North, Suite 105

Naples, Florida 34103

S TATEMENT OF T HE I SSUE

Whether Petitioner, Vanessa Puccini (ÑMs. PucciniÒ) , was subject to an

unlawful employment practice by Respondent, Brooks Burger (ÑRespondentÒ),

based upon h er r a ce or national origin, in violation of section 760.10, Florida

Statutes , 1 and if so, what remedy should be imposed.

P RELIMINARY S TATEMENT

On October 23, 2020, Ms. P uccini filed an Employment Complaint of

Discrimination with the Florida Commissio n on Human Relations

( Ñ C ommissionÒ ) alleging discriminati on based on her race or national origin.

Ms. Puccini alleged the following acts were discriminatory:

I am Black and of Haitian descent. I believe I am

being discriminated against because of my race and

national origin. I began my employment with

Responden t in November 2016. My current position

title is Server. On September 18, 2020,

Gary Stevens (an owner) and Marie Giebelhouse

confronted me about my past three paychecks,

stating that I have been overpaid. They also said

that because I did not mention it, that w as an

indication that I was defrauding the company. I

had previously been being paid that extra amount

due to the COVID shutdown. Marie Giebelhouse

previously mentioned that the extra pay would be

coming to an end soon, however, she did not give

spec ifics as to when it would end. There has been a

continuous pattern of discrimination from Gary and

Marie towards me. Marie would continuously give

me the slow section every shift until I spoke up

about it. I was the only employee sent home for a

week witho ut pay. I was told it was because I left a

customer on hold on the phone too long. Other

employees were not disciplined even when they

have more severe violations such as drinking

alcohol on the job. I also had to pay customersÔ bills

twice because they le ft without paying and I am the

only one who must do t his as well. Mr. Stevens once

said to me that t his is the reason companies donÔt

want to work with Haitians.

1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has

been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of

classifications p rotected from discriminatory employment practices. Ch. 2015 - 68, § 6, Laws of

Fla.

The Commission investigat ed Ms. PucciniÔs allegations. On April 21, 2021,

the Commission issue d a written determination that there was no reasonable

cause to believe an unlawful employment practice occurred. The

Commission Ôs determination provided in relevant part:

Complainant filed a complaint of discrimination

with the Florida Commission on Human Relations

(Commission) alleging that Respondent committed

unlawful discrimination on the bases of race and

national origin in violation of the Florida Civil

Rights Act of 1992. As required in Rule 60Y -

5.004(1), Florida Administrative Code (F.A.C.), the

Co mmissionÔs Office of Employment Investigations

completed an investigation of t his matter, which is

reported in the Investigative Memorandum. The

CommissionÔs Office of General Counsel reviewed

all available evidence and the Investigative

Memorandum, and ma de a recommendation to me,

as Executive Director of the Commission, that it is

unlikely that unlawful discrimination occurred in

t his matter.

Ms. Puccini timely filed a Petition for Relief ( Ñ Petition Ò ) with the

Commission citing a ÑDiscriminatory Employme nt Practice.Ò On April 27,

2021, the Commission referred the Petition to DOAH for the assignment of

an ALJ to conduct the requested hearing. The Notice of H earing by Zoom

Conference and Order of Pre - hearing Instructions w ere i s s ued on May 5,

2021.

On June 16, 2021, RespondentÔs Motions in Limine (ÑMotionÒ) was filed .

On June 21, 2021, a pre - hearing conference call 2 was held at which time

the Motion was argued. The Motion contained two issues: 1) the possibility of

2 The pre - hearing conference call was noticed on May 15, 2021, to discuss three items: 1) to

conduct a trial run of the Zoom conference platform (for the benefit of both part ies to ensure

the Zoom connection could be established); 2) to discuss any outstanding motions; and 3) to

resolve any other issues relevant to the conduct of the hearing.

Ms. Puccini Ñ introducing video taped [s ic] recordings of telephone

conversations between Ò 3 one of RespondentÔs owners and Ms. Puccini ; and

2) the possibility of Ms. Puccini introducing an unsigned letter or text

message from a person whom Ms. Puccini refused to disclose. As to the first

issue, Ms. Puccini acknowledged that she could not introduce the video - taped

recordings, and for that issue, the Motion was granted. As to the second

issue, the undersigned reserved ruling on it, pending the possibility that the

anonymous person would be disclose d to Respondent and discovery

completed. As provided in this Order, the second issue became moot when the

letter or text message was not introduced during the hearing.

The hearing was scheduled for and completed on June 28, 2021 .

At the hearing, Ms. Pucc ini testified on her own behalf and presented the

testimony of her husband, Richard Puccini. 4 Ms. P uccini did not offer any

e xhibits into evidence. 5 Respondent presented the testimony of Todd Brooks ,

RespondentÔs principal owner ; Gary Stevens, RespondentÔs co - owner; and

Marie Giebelhouse , RespondentÔs general manager (ÑGMÒ). Respondent did

not offer any exhibits.

3 During the pre - hearing conference call, it was confirmed that the recordings inclu ded the

audio of the conversations, obtained without the consent of all persons on the telephone.

4 Dan C. Beauchard ( Ms. Puccini Ôs friend), and Laura Saint - Jean ( Ms. Puccini Ôs cousin) each

attended a portion of the hearing, but did not testify. Ms. Pucci ni testified that their

testimony (Mr. BeauchardÔs and Ms. Saint - JeanÔs) would be based solely on conversations

each had with Ms. Puccini .

5 O n Friday, June 25, 2021 , Ms. Puccini faxed approximately 22 pages of material to DOAH.

There was no indication on the cover sheet that Respondent was provided copies of the

material, however it was late in the day, and the undersigned determined to address it at the

hearing on Monday, June 28, 2021. At the hearing, RespondentÔs counsel acknowledged

receipt of the pag es. However, Ms. Puccini did not ask that the material be admitted into the

record.

Upon conclusion of the hearing, it was confirmed that a transcript of the

proceedings would be ordered. The parties were advised that any propos ed

recommended orders (ÑPROsÒ) were to be filed within 10 days after the filing

of the transcript.

The one - volume Transcript of the hearing was filed with DOAH on July 7,

2021. Later that day, a Notice of Filing Transcript was issued advising the

parties that the Transcript had been filed.

Ms. Puccini filed her PRO on July 19, 2021. 6 R espondent filed its PRO on

July 9, 202 1. 7 To the extent that either PRO contained hearsay evidence not

supported by direct testimony or evidence, that information has not been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. Mr. Brooks is one of the owners of Respondent.

2. Mr. Stevens is one of the owners of Respondent . He credibly testified

that Respondent is a Naples, Florida , area restaurant business , specializing

in hamburgers .

3. Ms. Giebelhouse is RespondentÔs GM.

4. A t all times pertinent to this matter Respondent employed only

12 persons . This information was never challenged or contradicted .

5 . M s. Puccini is of Ha i tian descent, is bl ack, and speaks with a noticeable

accent. She lives in Naples, Florida, with her husband and daughter.

6 . Respondent hired Ms. Puccini in November 2016 as an employee.

Although different position titles were provided for the positions she held,

6 Ms. PucciniÔs PRO did not reflect a certificate of service and a Notice of Ex Parte

Communication was issued.

7 RespondentÔs electronic PRO was filed on July 9, 2021, along with a ÑNotice of Filing.Ò A

hard copy of the PRO was filed on July 12, 2021. Each reflected that Ms. Puccini was

provided a copy of the PRO.

after seve ral promotions Ms. Puccini became a shift leader/manager/server.

Ms. Puccini was an employee of Respondent until January 2021 , when she

was let go .

7 . According to Mr. Brooks, Mr. Stevens, and Ms. Giebelhouse,

Ms. Puccini was a Ñgood server,Ò Ñgood employ ee,Ò and Ñgreat worker,Ò who

did a Ñgood job.Ò While working for Ms. Giebelhouse , Ms. Puccini was

promoted from server to shift manager. Despite this promotion, Ms. Puccini

claimed her discrimination started when Ms. Giebelhouse started with

Respondent. Ho wever, no time was provided.

8 . Ms. Puccini alleged several instances that she felt she was

discriminated against based on her race and national origin : her work

schedule and section assignments; her discipline; her exclusion from

management meetings; a pa yroll compensation error; and being compared to

Haitian people who work elsewhere.

Work Schedule and Section Assignments

9 . Prior to Ms. Giebelhouse becoming the GM, Ms. Puccini worked the

dinner shift. When Ms. Giebelhouse prepared the work schedule, Ms. Puccini

was switched to the lunch shift. Ms. Puccini felt that Ms. Giebelhouse did not

provide her (Ms. Puccini) with her preferred work schedule, but instead did

so for others. Ms. Puccini did not provide the race or national origins of the

servers who re ceived their preferred work schedule .

10. Ms. Puccini also alleged that she was assigned to the outside patio

tables when it was cold, and that customers did not sit outside when it was

cold so her tips were much less. Ms. Puccini did not provide the race or

national origin s of the s ervers who were or were not assigned the outside

patio tables.

11. When Ms. Giebelhouse became the GM, she confirmed that she made

the serversÔ work schedule. Ms. Giebelhouse used a blank schedule with

everyoneÔs name on it. Sh e then asked all the servers to fill out their

preferred work schedule. Ms. Giebelhouse attempted to Ñmake it [the

schedule] as fair as possible for everybody.Ò

12. Ms. Giebelhouse Ñdid the best [she] couldÒ in making the server shift

work schedule . Ms. Gi ebelhouse did not make her decisions to schedule

Ms. Puccini to work on certain shifts or certain sections because of her race or

national origin.

Discipline

13 . Ms. Puccini alleged that she was disciplined differently than other

servers when a customer, who telephoned Respondent, complained she had

been put on hold for too long, and when two sets of diners left without paying

for their meals. According to Ms. Puccini, she was sent home for a week after

the customer complained she was put on hold for a lon g time. The

complaining customer did not testify. Although Ms. Puccini claimed that

other servers were not disciplined for the same offense, she did not provide

the race or national origin of any affected server.

14. Mr. Stevens testified Ms. Puccini argu ed with a customer over an

order. Ms. Giebelhouse testified Ms. Puccini was disciplined after she

ÑrepeatedlyÒ argued with a customer. As a result, Ms. Puccini was not

scheduled to work for a week.

15. In three instances, Ms. Puccini served diners who Ñdi ned and ditched,Ò

meaning they left Respondent without paying for the meals. In the first

instance, Ms. Puccini went outside to talk on her phone (which was against

RespondentÔs policies). Her customers left without paying for their meal.

Ms . Puccini was t old if it happened again, she would have to pay for the meal

when customers walked out without paying.

16. The second time customers Ñdined and ditched,Ò Ms. Puccini paid the

bill. The last time customers Ñdined and ditchedÒ at one of Ms. PucciniÔs

tables was on a Sunday morning. Ms. Puccini called the police for assistance

to catch the customers. For some undisclosed reason, Ms. Giebelhouse

declined to allow the police to review RespondentÔs video camera feed of the

incident, and the police were unable to locate those customers. Ms. Puccini

paid the bill.

17. Ms. Puccini testified a Ñguy walked out of the place , the guy left

without paying , Ò and Ms. Giebelhouse ÑdiscountedÒ a bill for Ñanother server

named Yvette in front of me [Ms. Puccini].Ò Ms. Puccini did not provide

YvetteÔs race or national origin.

18. In each of these circumstances, Ms. Puccini did not provide the race or

national origin of the other servers who were or were not disciplined for

similar issues as described above. Instead, Ms. Puccini testified:

They never punished anyone like me, like they did

to me. They find employees drinking alcohol on the

job. [ Ms. Giebelhouse ] give them notice and tell

them, if they do that next time, I will have to

punish you or to do something. [Ms. Giebelhou se]

never give me any notice.

19 . Ms. Giebelhouse and Mr. Stevens each testified that the responsibility

to pay for the Ñdined and ditchedÒ customers meals was not based on

Ms. PucciniÔs race or national origin. Rather it was because she left her tables

u nattended.

Overpayment

20. During a portion of the pandemic, Respondent was provided payroll

protection funds (ÑPPFÒ) to help keep the business in operation. According to

Ms. Giebelhouse, ÑA lot of the servers werenÔt making the money that they

were origi nally making when they worked, so [Respondent] decided to give

the servers an extra raise on top of their normal pay.Ò This raise equated to

five dollars over the hourly wage. At the time, Ms. Puccini was a shift

leader/server who also benefited from the e xtra pay.

21. In August 2020, the PPF were exhausted. Ms. Giebelhouse informed

Ms. Puccini that the PPF money had run out, and Ñeffectively immediatelyÒ

she (Ms. Puccini) was going back to her original hourly pay rate. The payroll

company failed to make th e requisite adjustments, and Ms. Puccini was paid

at the higher pay rate for three pay periods.

22. When Ms. Giebelhouse and Mr. Stevens became aware of the

overpayment, they scheduled a meeting with Ms. Puccini in September 2020.

Mr. Stevens expressed hi s disappointment that Ms. Puccini, as Ña more

valuable employee, being a shift leader manager,Ò did not let Respondent

know of the overpayments. Ms. Giebelhouse testified that they (she and

Mr. Stevens) Ñwere just a little upset thatÒ Ms. Puccini did not l et them know

of the three overpayments.

23. Ms. Puccini understood that mistakes c ould happen . However , she felt

Mr. Stevens and Ms. Giebelhouse accused her of fraud or stealing the money .

As an employee for over five years, Ms. Puccini felt threatened th at they

would think that of her. Further , Ms. Puccini felt they asked for the money to

be paid back in cash , when she offered to return it via a check or money

order . Ms. Puccini did not return the overpayment as Mr. Brooks spoke with

her, and assured her that she need not return it, as it was a payroll error.

Management Meeting

24. Ms. Puccini also alleged she was excluded from RespondentÔs

management meeting once she became a shift leader/manager. She provided

that it was a group that exchanged ideas, ye t she only heard about it from a

kitchen manager. Ms. Puccini admitted:

So they never Ï never tell me about that group, and

I was not, do you know what, I donÔt know the

reason why IÔm not in it, but itÔs okay. IÔm still Ï I

love what IÔm doing. IÔm takin g care of people, IÔm

grateful for that. ItÔs okay, I donÔt want to be

involved in everything.

Comparison to other Haitian people

25 . Ms. Puccini alleged Mr. Stevens made some discriminatory remarks

comparing Ms. Puccini to Haitian people working at other establishments,

and a t least one comment that Americans did not like to hire Haitians.

Ms. Puccini did not provide the Ñwhen, where, what , and whoÒ of Mr. StevensÔ

comments. Mr. Stevens denied making any discriminatory remarks towards

Ms. Puccini.

26. Al though Ms. Puccini testified that Mr. Brooks was present when

Mr. Stevens made some discriminatory remarks towards her, Mr. Brooks

credibly testified that he never heard Mr. Stevens say: Ñthe reason [any]

company in America donÔt want to work with Haitian people.Ò Mr. Brooks

agreed that he said Mr. Stevens Ñdoes live in the past ... he has a very old Ï

old school style management.Ò However, there was no connection to that

remark and any possible discriminatory language.

27. Ms. Puccini testified she was let go in January 2021. Ms. PucciniÔs

Petition did not include a retaliation claim for her termination. However,

Mr. Brooks addressed her termination by providing that he attempted to

keep her, yet there were multiple employees who indicated they were not

goi ng to work at the restaurant with her.

28 . Richard Puccini was unable to provide any direct testimony as to

events at RespondentÔs location when Ms. Puccini was working there.

29. Ms. Puccini was emotional as she testified, and believes she was

discriminat ed against. However, Ms. Puccini presented no persuasive

evidence that comparable employees outside of her protected group (race or

national origin) were treated differently than she. Ms. Puccini failed to

provide specific information regarding other emplo yees who were treated

differently than she (names, dates, racial composition, national origins, and

actions taken).

30 . Ms. Puccini offered no credible evidence that Respondent

discriminated against her because of her race or national origin in violation of

section 760.10.

C ONCLUSIONS OF L AW

31 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuant t o sections 120.569,

120.57(1), and 760.11(7), Florida Statutes, and Florida Administrative Code

Rule 60Y - 4.016.

32 . Respondent is not an ÑemployerÒ as that term is defined in section

760.02(7), which provides the following:

ÑEmployerÒ means any person empl oying 15 or

more employees for each working day in each of 20

or more calendar weeks in the current or preceding

calendar year, and any agent of such a person.

33 . The testimony is clear and persuasive: Respondent did not employ

15 or more employees at al l times material to this Petition and case.

Respondent does not meet the threshold for being deemed an employer under

the provisions of c hapter 760. No evidence was presented to contradict that

information.

34 . Ms. Puccini has not demonstrated that there i s subject matter

jurisdiction over the claim involved in this case because Respondent has

fewer than 15 employees.

35. Assuming arguendo that there was subject matter jurisdiction in this

case, Ms. PucciniÔs claims that she was discriminated against based on her

race and national origin will be addressed.

3 6 . The Florida Civil Rights Act of 1992 (Ñthe ActÒ or ÑFCRAÒ) prohibits

discrimination in the workplace. See §§ 760 .10 and 760.11, Fla. Stat.

3 7 . Section 760.10 states in pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or to fail or refuse to hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, beca use of

such individualÔs race, color, religion, sex,

pregnancy, national origin, age, handicap, or

marital status.

38. Florida courts have determined that federal case law applies to claims

arising under the FCRA, and, as such, the United States Supreme C ourt Ô s

model for employment discrimination cases set forth in McDonnell Douglas

Corporation v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),

applies to claims arising under section 760.10, absent direct evidence of

discrimination. See Harpe r v. Blockbuster EntmÔt Corp. , 139 F.3d 1385, 1387

(11th Cir. 1998); Paraohao v. Bankers Club, Inc. , 225 F. Supp. 2d 1353, 1361

(S.D. Fla. 2002); Fla. State Univ. v. Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st

DCA 1996); Fla. DepÔt of Cmty. Aff. v. Bryant , 5 86 So. 2d 1205 (Fla. 1st DCA

1991).

39. ÑDirect evidence is Óevidence, which if believed, proves existence of fact

in issue without inference or presumption.ÔÒ Rollins v. TechSouth, Inc. , 833

F.2d 1525, 1528 n.6 (11th Cir. 1987) ( quoting BlackÔs Law Dictio nary 413 (5th

ed. 1979)). In Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir. 1989), the

court stated:

This Court has held that not every comment

concerning a person's age presents direct evidence

of discrimination. [ Young v. Gen. Foods Corp. 840

F.2d Young Court

made clear that remarks merely referring to

characteristics associated with increasing age, or

facially neutral comments from which a plaintiff

has inferred discriminatory intent, are not directly

probative of d iscrimination. Id . Rather, courts have

found only the most blatant remarks, whose intent

could be nothing other than to discriminate on the

basis of age, to constitute direct evidence of

discrimination.

Ms. Puccini offered no evidence that would satisfy t he stringent standard of

direct evidence of discrimination.

40 . In order to prove a prima facie case of unlawful employment

discrimination under chapter 760, Ms. Puccini must establish that: (1) she is

a member of the protected group; (2) she was subject t o adverse employment

action; (3) Respondent treated similarly situated employees outside of her

protected classifications more favorably; and (4) she was qualified to do the

job and/or was performing her job at a level that met the employerÔs

legitimate e xpectations. See, e.g., Jiles v. United Parcel Serv., Inc. , 360 Fed.

Appx. 61, 64 (11th Cir. 2010); Burke - Fowler v. Orange Cty . , 447 F.3d 1319,

1323 (11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc. , 330 F.3d 1313,

1316 (11th Cir. 2003); Williams v. Vitro Serv. Corp. , 144 F.3d 1438, 1441

(11th Cir. 1998); McKenzie v. EAP Mgmt. Corp. , 40 F. Supp. 2d 1369, 1374 - 75

(S.D. Fla. 1999).

41 . Under the McDonnell analysis, in employment discrimination cases,

Ms. Puccini has the burden of establishing by a prep onderance of the

evidence a prima facie case of unlawful discrimination. If the prima facie case

is established, the burden shifts to the employer to rebut this preliminary

showing by producing evidence that the adverse action was taken for some

legitimate , non - discriminatory reason. If the employer rebuts the prima facie

case, the burden shifts back to Ms. Puccini to show by a preponderance of the

evidence that the employer Ô s offered reasons for its adverse employment

decision were pretextual. See Texas De pÔt of Cmty. Aff. v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Such is not the case here .

Ms. Puccini did not meet the preponderance of the evidence standard to

establish a prima facie case .

4 2. Ms. Puccini established that she is a member of a protected group, in

that she is black and of Ha i tian descent. However, Ms. Puccini failed entirely

to present any evidence that otherwise similarly - situated persons were

treated more favorably by Respondent or that such persons outside of her

p rotected classifications . In other words, Ms. Puccini failed to prove a prima

facie case of unlawful employment discrimination.

4 3 . A courtÔs role is not to sit as a Ñsuper - personnel department that

reexamines an entityÔs business decisions.Ò Denney v. Ci ty of Albany , 247

F.3d 1172, 1188 (11th Cir. 2001) (quoting Elrod v. Sears, Roebuck & Co. , 939

F.2d 1466, 1470 (11th Cir. 1991)). Ms. Puccini offered no evidence to support

her claim that she was discriminated against because of her race or national

origin .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order that Respondent does not employ over 15 employees, and the

Petition should be dismissed fo r lack of subject matter jurisdiction .

Alternatively, a final order should be entered determining that Ms. Puccini

has not established her claim of racial or national origin discrimination and

that her Petition for Relief should be dismissed in its entiret y.

D ONE A ND E NTERED this 5th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of August , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Vanessa Puccini

Florida Commission on Human Relations Apartment 517

4075 Esplanade Way , Room 110 4680 Saint Croix Lane

Tallahassee, Florida 32399 - 7020 Naples, Florida 34109

Thomas K. Rinaldi, Esquire Cheyanne Costilla, General Counsel

Bond, Schoeneck & King, PLLC Florida Commission on Human Relations

4001 Tamiami Trail North , Suite 105 4075 Esplanade Way , Room 110

Naples, Florida 34103 Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed wit h the agency that will issue the Final Order in this

case.