The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations (FCHR) does not make a "cause" or "no cause" determination, as provided in Section 760.11(3), Florida Statutes, but rather issues a Notice of Dismissal, pursuant to Section 760.11(8), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(6), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if Petitioner fails to name Respondent in the Petition for Relief filed with the FCHR, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0237, and FCHR Case No. 99-0849, for failure to timely file his Petition for Relief and for failure to properly name Respondent in the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE 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 21st day of June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius, LLP 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Good Samaritan Hospital (GSH), is a hospital with emergency room services located in West Palm Beach, Florida. GSH is licensed under Chapter 395, Florida Statutes. Respondent, Department of Health and Rehabilitative Services (DHRS), is the designated state agency responsible for the regulation of hospitals pursuant to Chapter 395, Florida Statutes. On or about June 12, 1989, DHRS filed an Administrative Complaint against GSH alleging that GSH had, on the evening of November 30, 1988, failed to provide neurosurgical treatment to a patient presented to its emergency room by the West Palm Beach Fire Department Emergency Medical Services in violation of Sections 395.0142, 395.0143, and 401.45, Florida Statutes. The Administrative Complaint notified GSH that DHRS intended to levy an administrative fine against it in the amount of $10,000.00. On February 1, 1989, Department of Health and Rehabilitative Services (DHRS) issued PDRL Letter Policy No. 02-89 (letter policy), which purports to discuss the requirements of Section 395.0142, Florida Statutes. The following appears as paragraph 9 of the letter policy under the portion styled "Policy Statement": 9. If a hospital provides an "ongoing" service and/or specialty and is specifically requested to accept a "stabilized" patient from a transferring hospital not providing such service and/or speciality, the hospital must accept such transfer for treatment. If specialized staff is not "on duty" or readily available, coverage for such service must be arranged by the hospital to which the patient will be transferred. Failure to accept will be considered a violation of this statute. The following findings of fact are based, in part, on the stipulation of the parties: As of November 30, 1988, the date of the incident which is the subject of the administrative complaint, DHRS had not notified GSH of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes. As of November 30, 1988, no rule existed which stated a specific requirement that hospitals which provide neurosurgery in their emergency rooms must staff or provide on-call neurosurgery services on a continuous basis, i.e., twenty-four (24) hours per day, 365 days per year. As of November 30, 1988, no rule had been promulgated which contained the requirements of paragraph 9 of the letter policy. The following findings are based, in part, on admissions made by DHRS: Paragraph 9 of the letter policy is an agency statement of general applicability that implements, interprets, or prescribes law or policy. Paragraph 9 of the letter policy is an agency statement which imposes a requirement not specifically required by statute or by an existing rule. The letter policy was distributed to hospital administrators at all of Florida's licensed hospitals. The letter policy was primarily drafted by Connie Cheren, Director of DHRS' Office of Licensure and Certification, and by Larry Jordan, Chief of DHRS' Office of Emergency Medical Services, following meetings and consultations with staff. Neither Ms. Cheren nor Mr. Jordan is an attorney. The letter policy was sent out over Ms. Cheren's name. The DHRS employees who investigated the incident which occurred at GSH on November 30, 1988, initially submitted a report dated March 7, 1989, which found no violation by GSH. Thereafter, the investigators were provided a copy of the policy letter by their supervisor and advised to submit an amended report based on paragraph nine. The letter policy was used and relied on by DHRS investigators, at the direction of their supervisor, to submit their Amended Investigative Report. The amended report found a violation by GSH. DHRS relied, in part, on the letter policy in determining whether to file an administrative complaint against GSH.
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Sf day ot PAGO Co013, in Tallahassee, Florida. Che ELIZABETH DUDEK, SECRETARY are Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRCIT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Filed November 5, 2013 11:15 AM Division of Administrative Hearings Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Inter-office Mail) Oertel, Fernandez, Bryant & Atkinson, P.A. Attn. Segundo Fernandez 2060 Delta Way Tallahassee, Florida 32303 Shutts & Bowen, LLP. Attn. Joseph Goldstein 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Blank & Meenan, P.A. Attn. F. Philip Blank 204 South Monroe St. Tallahassee, Fl. 32301 Blank & Meenan, P.A. Attn. David S. Osborne 204 South Monroe St. Tallahassee, Fl. 32301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregging document has been furnished to the above named addressees by U.S. Mail on this the 2/>"aay oto fra 013 Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630
Findings Of Fact New findings of fact have only been made in accord with the limited mandate/remand jurisdiction of the appellate court. Otherwise, findings of fact contained in the recommended order of Hearing Officer R. T. Carpenter entered September 18, 1985, have been adopted and incorporated by reference. To the extent the adopted original findings impact on the new findings, they have been adopted, following review of the record and the parties' submissions, for content. Any language from the original recommended order which has not been adopted is rejected in accord with the court's limited remand. Paragraph 1 (including footnote 1) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. The "service area" at issue was disputed by the parties. HRS District 9 encompasses Palm Beach, Indian River, Okeechobee, Martin and St. Lucie counties. Paragraph 3 of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. Only the second and third sentences of paragraph 4 of the original recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference. Paragraph 5 including (footnote 3) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. See also new finding of fact 8 infra. The Network 19 representative, who was similarly qualified, calculated a need for five additional stations but his methodology, calculations, and ultimate result is rejected for reasons clear from the remand opinion dealing with application by Mr. Moutsatos of the wrong population data and for use of an incorrect "service area" as set forth in new finding of fact 7 infra. As noted, the geographic location wherein the applicant, West Boca, seeks to locate, is Boca Raton, Palm Beach County, Florida, a county within HRS District 9. Rule 10-5.11(18), Florida Administrative Code, does not define "service area." District 9 has not been subdivided by either the local health council or HRS. The original application filed by West Boca indicated the proposed service area would be Palm Beach County. At the administrative hearing, West Boca, over Boca Raton AKC's and Delray AKC's objections, was permitted to introduce an amended application which designated a sub-area of Palm Beach County as its "service area", and the original recommended order entered herein recognized such an abbreviated area. Contrariwise, the HRS final order ruled that Palm Beach County was the appropriate service area to be used in applying the need methodology contained in the rule. Because this aspect of the final order was affirmed by the First District Court of Appeal, it becomes "law of the case" and Palm Beach County must be used as the service area for applying the methodology to this applicant. State v. Stebile, 443 So.2d 398 (Fla. 4th DCA 1984), Marine Midland Central v. Cote, 384 So.2d 658, (Fla. 5th DCA 1980). However, because the parties' submissions have insinuated this element of "service area" into the remand consideration of this cause, it may be noted that the record is clear that at all times relevant (including but not limited to the date West Boca's application was deemed complete, the date the application was preliminarily reviewed by HRS, and the date of hearing) HRS used Palm Beach County as the appropriate "service area" as contemplated by Rule 10- 5.11(18). West Boca has failed to demonstrate within the evidence received at the prior hearing that a smaller area should be defined for purposes of these proceedings. This determination is made notwithstanding evidence of desirable driving times for end stage renal dialysis (ESRD) patients and superfluous language employed by HRS' expert witness, Ms. Dudek, to the effect that although HRS policy and procedure always utilized Palm Beach County, a sub-area need determination is not an inappropriate measure of need for health planning purposes. These latter elements have been considered but are not persuasive that a smaller sub-area is appropriate in the face of sound health planning reasons for not using smaller than county sub-areas. The present submissions of West Boca on remand also fail to demonstrate any compelling reason to depart from normal HRS policy and procedure. In evaluating an application for a CON for a proposed chronic renal dialysis facility, HRS utilizes the methodology contained in Rule 10-5.11(18), Florida Administrative Code. The First District Court of Appeal has ruled that the need for the West Boca facility must be determined utilizing the "1983-84 population data as received into evidence at the prior hearing" and determining need for the proposed dialysis center one year from the date that the application is deemed complete by HRS. West Boca's application was deemed complete in February of 1983. The 1984 population of the service area (Palm Beach County) was 689,325. The 1984 new patient acquisition rate was 197.29 per million. The 1984 service area mortality rate was 23.8 percent. This data was gathered by the District 9 Health Council and the HRS Office of Community Medical Facilities from ESRD providers for the calendar year 1984. In calculating the need under the ESRD methodology the first variable is "current ESRD patients by census for service area." At the administrative hearing in this case, Elizabeth Dudek, Community Medical Facilities Consultant for HRS concluded that 4 stations were needed. (See original Finding of Fact 5, adopted in new Finding of Fact 5 supra.) However, Ms. Dudek also testified that this "patient census" number was 260. Ms. Dudek obtained this "260" figure from the Florida ESRD Network 19 First Quarter Report 1985. She totaled the in-patient census figures for the Palm Beach County facilities to obtain this figure. However, since that figure represents only in-center patients, from which the second variable ("ESRD patients on home dialysis") is to be subtracted, the patient census number of 260 as given by Ms. Dudek and as contained in HRS exhibit 1 is in error. The correct number for the first variable in the ESRD methodology can only be determined by adding in-center patients and home dialysis patients (260 + 24 284). HRS is required to correct any factual errors within its knowledge. Balsam v. HRS, 486 So.2d 1341 (Fla. 1st DCA 1986). Since the patient census in HRS exhibit 1 is in error, the correct figure should be substituted. Once this is done, the correct procedure for calculating the need for a proposed ESRD facility in Palm Beach County, which application was deemed complete in 1983, is as follows: Current ESRD patients by census for service area (Palm Beach County) 284 Less ESRD patients on home dialysis 24 Plus new ESRD patients per 1 million population for one year [computed using 1984 new patient acquisition rate multiplied by 1984 projected population] 136 Less projected number of ESRD patients to receive home dialysis training 12 Less number of ESRD patients receiving transplant operations for one year 7 Less number of unsuccessful transplants for one year 0 Less ESRD patient mortality for one year [In calculating need under the ESRD methodology, if the "patient census" number is changed, then the variable "ESRD patient mortality for one year" will also change. Therefore, the patient mortality is determined by the following procedure: mortality rate based on experience for service area applied to the subtotal of previous calculations (284-24+136-12-7-0--377; 377 x 23.8 percent 90). See Rule 10-5.11(18)(b)1. Florida Administrative Code and HRS exhibit 1.] 90 Plus 10 percent of current and projected ESRD patients on home dialysis 4 Equals number of patients requiring chronic dialysis services for one year in the service area 291 The Rule also provides that 80 percent of the capacity of four patients per station per week is to be utilized, yielding a factor of 3.2. This is divided into the number of patients requiring chronic dialysis services for one year in the service area (291). The dividend, 91, is the number of stations needed in the service area, less the 84 existing stations, for a net need of seven stations in Palm Beach County in 1984. (Note that where permitted all figures have been "rounded" to the nearest whole number). Petitioners identified some relatively minor errors in input data and calculations. These errors would not, however, significantly change the so- called "hard numbers" stated above in new Finding of Fact 8. The more significant error of Ms. Dudek described therein is purely one of arithmetic and its required correction, in no way does violence to that witness' correct application of the rule methodology. Both the Applicant and Petitioners presented additional expert testimony of health care consultants. Not surprisingly, their conclusions tended to reduce the need on one hand (Petitioners) and increase it on the other (Applicant). Although their testimony is incorporated in those considerations discussed in new Finding of Fact 11 (adopting original recommended order paragraphs 11-24 inclusive), it is rejected as to modification of the data utilized and generated by the HRS witness. 11. Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (see also new findings of fact 5-8,) 23, and 24 of the previous recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference.
The Issue Whether the Respondent discriminated against the Petitioner by failing to promote the Petitioner as set forth in the claim.
Findings Of Fact The Petitioner was an employee at the South Florida State Hospital (the Hospital) from October 15, 1979, until approximately October 31, 1998. On the latter date, a private company assumed full management of the hospital. From that time neither the Respondent nor its predecessor (Florida Department of Health and Rehabilitative Services) has maintained management or administration of the facilities. Prior to October 31, 1998, the Hospital was operated by a State of Florida agency. As of October 31, 1998, the Petitioner ceased to be a State of Florida employee. The Petitioner is a black female. On or about May 6, 1997, the Petitioner applied and interviewed for a job at the Hospital. She sought the position of Unit Treatment and Rehabilitation Director. At that time, the Hospital advertised two open positions for Unit Treatment and Rehabilitation Director. Three applicants were ranked for the open positions. Among the three, the Petitioner was ranked third by the selection committee. At or near the same time, the administrator of the Hospital received notice that he would have to cut positions from his budget. This slashing of employee positions was in response to budget demands created at the agency level. It had nothing to do with the job performances of employees at the Hospital. In fact, the Petitioner has always received favorable employee performance evaluations. She was a valued employee at the Hospital and was considered to be hard working by peers and supervisors alike. Nevertheless, when faced with the directive to cut positions, the administrator elected to eliminate open or unfilled positions. Pertinent to this case is the slot that the Petitioner would have filled had it not been eliminated. At least under one theory, the Petitioner would have been promoted to Unit Treatment and Rehabilitation Director had the position not been deleted. The promotion would have happened because one of the higher-ranked applicants for the job chose to reject the Hospital's offer of employment. Thus as the third-ranked applicant, the Petitioner would have been selected. Notwithstanding the foregoing, the Petitioner maintained she should have received the position of Unit Treatment and Rehabilitation Director that was filled by an individual named Driscoll. She maintains that although Driscoll was the highest-ranked applicant, she was equally or better qualified for the promotion. Driscoll is a white male. Prior to his employment at the Hospital, Driscoll had served as the director of a short-term residential facility. He had also been the director of case management for a hospital and had supervised other case managers and support staff. The Petitioner had no similar or equivalent supervisory experience. The Petitioner had never supervised employees to any level of supervision as demonstrated by Driscoll at the time of the selection process. The advertised opening sought an individual with "a bachelor's degree and four years of professional direct services experience in a social, rehabilitative or health care treatment program, two of which must have been in a supervisory capacity." The Hospital's consideration of the Petitioner's role as a "lead worker" was a generous allowance. Technically, the Petitioner did not meet the job description requirements. Additionally, the Petitioner's advanced degree did not qualify her for the position of Unit Treatment and Rehabilitation Director. The advertisement for the position of Unit Treatment and Rehabilitation Director provided that a: . . . masters degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for one year of the required [sic] nonsupervisory experience. A doctorate degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for the required [sic] nonsupervisory experience. The Petitioner did not hold either the referenced master's degree or doctorate degree. The Petitioner was not an equally qualified or a superiorly qualified applicant for the position of Unit Treatment and Rehabilitation Director. Nevertheless, when she was not chosen for the position the Petitioner wrote a memorandum to the Commission to complain about the selection of Driscoll. The memorandum stated: A blatant campaign of racism reigns at South Florida State Hospital. Most recently, the hospital advertised for the position of Unit Treatment and Rehabilitation Director. Two (2) positions were to be filled as a result of that advertisement. Qualified applicants were interviewed from within the hospital. There were two (2) Afro-American and three (3) Anglo-Saxon applicants. Of the two (2) Afro-American applicants applying, I met all of the qualifications to fill one (1) of the positions. Over the dissent of others on the interviewing committee, Patricia Espinosa Thomson (acting hospital administrator) re-advertised the position(s). On September 12, 1997, the Commission acknowledged receipt of the Petitioner's Memorandum of June 27, 1997, and, in accordance with a Worksharing Agreement with the Equal Employment Opportunity Commission (EEOC), the complaint was forwarded to the Miami District Office of the EEOC. This complaint became the subject matter of the instant case. The Commission's notice to the Petitioner provided: Within 35 days of notice of EEOC's Letter of Determination regarding the above referenced complaint, you may request the FCHR to review the final finding and orders of the EEOC by requesting a Substantial Weight [sic] Review. There is no evidence regarding whether the Miami District issued a Letter of Determination. It is undisputed, however, that the Commission did not issue its Notice of Determination until October 9, 2001. The Notice of Determination represented that the Respondent was advised of the Petitioner's claim in January of 1998. The Notice of Determination also recognized that the Respondent had asserted that the claim was "time-barred" and that it would not provide information regarding the claim. Based upon the inference found in Rule 60Y-5.003(4), Florida Administrative Code, the Commission entered a determination of cause. The Commission apparently did nothing to timely investigate the complaint, did not act within 180 days of its filing, and did not notify the Hospital that its records should be maintained in connection with the allegations of this case. When the Hospital went to private management all public records that had been maintained were stored or destroyed according to agency rules. There was no effort to conceal or destroy records related to this matter. The Hospital administrators faced the daunting tasks of trimming the Hospital FTEs, preparing for and transitioning to the private company, and organizing records for storage. There was no effort to single Petitioner out for discriminatory purposes. When eventually questioned regarding this case, the Department elected not to participate in the investigation as under the then known precedent it was not required to do so. The Department's decision predated Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Both parties claim prejudice as a result of the delays in pursuing this cause. The Petitioner maintains that records that would have helped her assessment of the matter have been either lost or destroyed. The Respondent maintains that witness unavailability, loss of records, and the fact that it does not even manage the Hospital anymore compounds its inability to appropriately respond to the Petitioner's claim. What is certain is the fact that the Department cannot award the position to the Petitioner. Further, even at the time in question, the Hospital could not have awarded the position to the Petitioner since the position had been eliminated. The only way the Petitioner could have gotten the position would have been if Driscoll had been removed. And, as previously noted, the Petitioner was not equal to or superior to Driscoll in her qualifications for the position. In June 2002, the instant case was heard on a motion to dismiss. That motion was granted. The conclusions of law from the Recommended Order of Dismissal found that the Division of Administrative Hearings does not have jurisdiction over the subject matter of this proceeding. Despite that conclusion, the Commission entered an Order Remanding Petition for Relief from an Unlawful Employment Practice. Accordingly, this matter was re-opened and scheduled for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim. DONE AND ENTERED this 25th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Hearings 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 this 25th day of March, 2003. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy A. Fleischer, Esquire 4801 South University Drive, Suite 3070 Davie, Florida 33328 Sondra R. Schwartz, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
