The Issue By amended administrative complaint dated July 18, 1980, petitioner alleged, in seven counts, that respondent violated various statutes and rules while licensed by petitioner as an insurance agent. At the hearing, petitioner voluntarily dismissed Counts I, V, and VI. In Count II, the amended administrative complaint alleges that respondent sold a Medicare Supplement Health Insurance Plan to Ralph P. Barnard "on or about May 30, 1979," that, "on or about June 18, 1979, upon delivering the" policy, respondent told Mr. Barnard and his wife falsely that it was mandatory that they each purchase an Emergency Medical Information Card and that they did buy the cards on the strength of respondent's representations, and that respondent "knew or should have known that the" insurer had not authorized him to sell the cards or "make representations regarding the [cards] in conjunction with the sale of insurance" contrary to "Sections 626.611(4), 626.611(5), 626.611(7), 626.611 (9), 626.611(13), 626.621(2), 626.621(3), 626.621(6), and 626.621 (9), Florida Statutes..." In Count III, the amended administrative complaint alleges that respondent sold insurance policies to Clara H. Shackett to whom on or about June 1, 1979, [he] represented...that the insurance company required her to purchase an Emergency Medical Information Card, and/or that she needed the Emergency Medical Information Card because it was going to be required by all insurance companies"; that Ms. "Shackett, relying upon the representations made by [respondent] purchased" a card for $60.00; and that respondent "knew or should have known, that the ...[card] was not required of Clara H. Shackett for any purpose"; that respondent "on or about July 2, 1979, took from Clara H. Shackett, three insurance policies...in which [respondent] had no right to possession...[including a policy that] lapsed while in [respondent's] possession", contrary to "Sections 626.611(4), 626.611(5), 626.611)7), 626.611 (9), 626.611(13), 626.621(2), 626.621(3), 626.621(6), and 626.621 (9), Florida Statutes..." In Count IV, the amended administrative complaint alleges that respondent sold insurance policies to Lesbia Davis "on or about August 14, 1979, September 26, 1979, February 26, 1980, April 29, 1980, February 27, 1980, and July 1, 1980...[which] represented replacement of existing...policies issued to Lesbia Davis by the American Sun Insurance Company"; that Ms. Davis purchased the replacement policies in reliance on respondent's representations that "the American Sun Insurance Company was in financial difficulty and his agency felt that...a change in companies...[was in] Ms. Davis' best interest" although he "knew or should have known that the statements made regarding the American Sun Insurance Company [to induce replacement of existing policies] were untrue, deceptive, false, misleading, derogatory [sic] or defamatory" contrary to Sections 626.611(4), (5), (7), (8), (9), and (13), 626.621(2) and (3), and 626.9541(3) and (12), Florida Statutes (1979). At the hearing, petitioner moved ore tenus to amend the fourth policy number in Paragraph 2 of Count IV to state 10145156 rather than 10134156; and the motion is hereby granted. Finally, in Count VII, the amended administrative complaint alleges that respondent has "with such frequency as to indicate a general business practice...[e]ngaged in unfair methods of competition or in unfair or deceptive acts or practices involving the business of insurance...[k]nowingly made false or fraudulent statements or representations in or with reference to any application or negotiation for insurance...[k]nowingly caused to be made, published disseminated or delivered to an insured false material statements...[k]nowingly collected a sum as premium or charge for insurance in excess of the premium or charge applicable...[made] misleading representations or incomplete or fraudulent comparisons of...insurance policies or insurers...intending to induce any person to...terminate...any insurance policy or to take out a policy of insurance in another insurer..."; and thereby "engaged in unfair methods of competition or in unfair or deceptive acts or practices as prohibited under Part VII of Chapter 626, Florida Statutes."
Findings Of Fact At all pertinent times, respondent was a licensed insurance agent employed by an insurance firm doing business under the name Consumer Service Health Agency (CSHA). At one time or another, CSHA represented American Sun Life Insurance Company (American Sun) and Reliable Life and Casualty Company (Reliable). Respondent was licensed to sell ordinary life and health insurance including disability insurance, at all pertinent times. Roland Weiner, an officer of American Sun, made Emergency Medical Cards (cards) available to general agents, including CSHA, at American Sun's cost of 42 cents per card. Mr. Weiner advised American Sun's general agents by memorandum that the cards were to be used for promotional purposes and were not to be sold to the public. American Sun furnished its general agents forms which would-be cardholders filled out, supplying information about medical history and characteristics. The completed form was then "reduced to microfilm chip and sealed in a handsome plastic information card." Respondent's Exhibit No. 2. Medical information on the card could not be read with the naked eye. Respondent sold several of these cards on behalf of CSHA for $60.00 each. He tried to sell one to each of his customers. (T. 112-113.) Every time he sold a card, respondent earned $30.00. On May 30, 1979, respondent sold an insurance policy to Ralph P. Barnard. When respondent returned to the Barnard residence, a mobile home, to deliver the policy, he sold cards to Mr. and Mrs. Barnard, after telling them that possession of such cards would be mandatory in the future. The next day the Barnards thought better of their purchase and asked the bank on which Mrs. Barnard had written a check for $120.00 to stop payment. Respondent first visited Clara H. Shackett on May 2, 1979, and sold her an insurance policy which he delivered to her home on June 1, 1979. On that occasion he sold Ms. Shackett a second insurance policy, which he returned a third time to deliver, on June 28, 1979. On the third visit, respondent sold Ms. Shackett a card for $60.00, after telling her such a card was going to be required by all insurance companies. Deposition of Clara H. Shackett, p. 29. When he left, he took with him three insurance policies issued by National States Insurance Company, two overlapping cancer policies and a nursing home policy. Mr. Shackett asked, "Where are you going with those policies?" to which respondent replied, "They're no good to you...You've taken out the new insurance." Deposition of Clara H. Shackett, p. 20. After the National States policies lapsed, the insurance salesman who had sold them to Ms. Shackett called on her, in August of 1979, and the National States policies were subsequently reinstated. After insurance salesmen employed by CSHA had sold certain American Sun policies to Lesbia J. Davis, CSHA ceased representing American Sun, and respondent called on Ms. Davis. In response to the question whether he was "recontacting all the previous customers that had bought policies with American Sun", respondent answered, "Not necessarily." (T. 127.) In any event, respondent sold Ms. Davis Reliable policies to replace American Sun policies on August 14, 1979 (No. 10110802, effective September 1, 1979), on September 26, 1979 (No. 10118435, effective October 15, 1979), on February 27, 1980 (No. 145368), on February 28, 1980 (No. 10145156, effective March 17, 1980) and a Reliable cancer insurance policy effective May 12, 1980 (No. 10154286). Respondent induced Ms. Davis to change insurance companies by telling her that American Sun was having financial difficulties. American Sun is a wholly owned subsidiary of Future Florida Corporation which is wholly owned by Southland Capital Investors, Inc. American Sun itself, which is 80 percent coinsured by INA, was never financially impaired or in financial difficulty (from at least as early as May of 1979 until at least December of 1979); however, Southland Equity proportion, which, at the time of the hearing, owned 18 percent of Southland Capital Investors, Inc., was insolvent, from at least as early as May of 1979 until at least December of 1979.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's license and eligibility for licensure. DONE AND ORDERED this 13th day of February, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of February, 1981. COPIES FURNISHED: Daniel Y. Sumner, Esquire and David Yon, Esquire Larson Building, Room 428-A Tallahassee, Florida 32301 Ronald W. Black, Esquire 112 South Lake Avenue Orlando, Florida 32801
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the written request for a formal hearing was not timely filed pursuant to Subsection 120.569(2)(c), Florida Statutes (2004), and Florida Administrative Code Rule 28-106.111(2). Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the Administrative Complaint issued by Petitioner, Department of Children and Family Services, fails to advise Respondent, Adoptions By Choice, Inc., whether mediation under Section 120.573, Florida Statutes (2004), is available as an alternative remedy as required by Section 120.573, Florida Statutes (2004), and Florida Administrative Code Rule 28-106.111(1).
Recommendation Based on the foregoing facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Answer and Petition of Respondent, Adoption by Choice, Inc., in DOAH Case No. 04-3596 and DCF Case No. 04-0001, for failure to timely file its Answer and Petition; and Petitioner may proceed to final agency action. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S 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 3rd day of December, 2004. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services Regional Headquarters, Suite 902 9393 North Florida Avenue Tampa, Florida 33612 Ron Smith, Esquire 8293 86th Avenue North Largo, Florida 33777 Paul F. 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
Findings Of Fact Petitioner, a nonprofit corporation, was established in January of 1971 for the express purpose of rendering home health services within the State of Florida. It was approved by the Florida Department of Health and Rehabilitative Services and the then U.S. Department of Health, Education and Welfare (hereinafter "HEW") as a Medicare provider in the spring of 1971. In 1974, Petitioner created a subunit located in Bradenton to provide services in Manatee and Sarasota Counties. In 1975, a subunit was created in Warm Mineral Springs to serve lower Sarasota and Charlotte Counties. Both subunits were duly certified as home health providers by the Department and HEW. Petitioner's Medicare application was accepted as retroactive to October 1, 1975, reflecting the service area of the Warm Mineral Springs subunit to be lower Sarasota and Charlotte Counties. Petitioner has continuously provided home health services to Charlotte County on an ever-increasing basis since 1975, which predates both state licensing authority over home health services and the applicability of the Certificate of Need law to home health agencies. Since the Department has obtained licensure authority over home health services, Petitioner's Warm Mineral Springs subunit is and has been licensed to serve both Sarasota and Charlotte Counties. On September 26, 1979, Petitioner advised the Department that it intended to open an office in Charlotte County out of which it would serve its Charlotte County patients, setting forth the reasons therefor, and requesting the Department's approval far the opening of an office in Punta Gorda, which would be coordinated with Petitioner's subunit in Fort Myers. Subsequent correspondence between the petitioner and the Department revealed that Petitioner's operational costs would most likely be reduced by the opening of the office in Charlotte County and that no change in services provided would occur. Petitioner further indicated that the only change being sought was an organizational change within the geographic areas being served and also indicated that the proposed office in Charlotte County would not be a branch office of any of Petitioner's subunits, but rather would be a full, separate subunit. On December 26, 1979, the Department advised Petitioner that although Petitioner would remain licensed to provide services to both Sarasota and Charlotte Counties from its Warm Mineral Springs subunit, the establishment of a subunit in Charlotte County would not only require a separate license in Charlotte County, but would also require Certificate of Need review. In that same letter, the Department further advised Petitioner that its determination constituted final agency action. To preserve its rights, Petitioner requested a hearing pursuant to Section 120.57, Florida Statutes. Thereafter, Petitioner submitted a letter of intent to the South Central Florida Health Systems Council, the health systems agency geographically responsible for processing Certificate of Need applications. Petitioner requested that agency's assistance in completing a Certificate of Need application, but was advised that that agency would be unable to assist in processing Petitioner's Certificate of Need application, since Petitioner was already providing services in the area for which the need would necessarily be determined. Petitioner accordingly contacted the Department to advise it that the health systems agency was unable to review the need for services when the services were being provided, and the Department advised Petitioner to go back to the health systems agency for a determination of need. Between the time that the Certificate of Need law first became applicable to home health agencies and the time that Petitioner communicated to the Department its intent to open an office in Charlotte County, the Department has approved the applications of several home health agencies to establish a subunit without obtaining a Certificate of Need, since the Department considered those agencies to be "grandfathered." The Department authorized Sun Coast Home Health Care to open a subunit in Venice in 1978 without requiring a Certificate of Need, as it permitted Central Florida Home Health Services to open subunits in Putnam County and in Lake County in 1978 without the necessity for obtaining a Certificate of Need prior to licensure. Further, the Department authorized Gulf Coast Home Health Services to open a subunit in Hernando County in 1978 without the necessity of obtaining a Certificate of Need for the reason that services were being provided by that agency to patients in Hernando County prior to May 1, 1976, although that subunit was not opened until 1979. The "grandfather" concept was again applied in a similar situation in the Department's Final Order in Global Home Health Services, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 78-1013. No evidence was presented by the Department herein in support of its argument that these agencies had all expressed an intent to open a subunit prior to the effective date of the Certificate of Need law applicable to home health agencies.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered authorizing petitioner to open a subunit office for home health services in Charlotte County, Florida, and issuing to Petitioner a separate license for that office if one be required. RECOMMENDED this day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 486 Tallahassee, Florida 32301 Richard I. Manas, Esquire Manas and Marcus 804 Greater Miami Federal Building 200 Southeast First Street Miami, Florida 33131 Herbert E. Straughn, Esquire Office of Community Medical Facilities Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building Two, Room 220 Tallahassee, Florida 32301 Ed Houck, Ph.D. Executive Director South Central Florida Health Systems Agency, Inc. 3801 Bee Ridge Road Sarasota, Florida 33582 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32381 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA HOME HEALTH SERVICES, INC., and FLORIDA HOME HEALTH SERVICES-WEST, Petitioners, DOAH CASE NO. 80-206 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, /
Findings Of Fact Sunland Marianna is a facility which cares for the mentally retarded and is operated by the Department of Health and Rehabilitative Services. Because of the type care needed by Sunland clients and federal funding, it is very important and federal rules require that a minimum of three staff be on duty during the first and second shifts. When staff are out without authorization, other employees must be pulled from other cottages, creating a shortage in other areas, or employees are called from home causing overtime payments. At the time of the final hearing, Petitioner Michael Simmons was 38 years old. He was born and raised in Chipley, Florida, and is a graduate of Chipley High School. After services in the U.S. Marine Corps, he attended Washington County Vo-Tech School and received a certificate of completion for the nurse's assistant course. In 1987, he attended and completed a course of study entitled "Special Care Unit Staff Training," offered by the Northwest Florida Mental Health Center. In late May, 1988, Mr. Simmons applied for a position as a Human Services Worker I, at the Sunland facility operated near Marianna, Florida by Respondent, Department of Health and Rehabilitative Services ("HRS"). According to his employment file, at the time of his application, Mr. Simmons was married to Rose M. Simmons and had one son, Erick, born June 30, 1984. Mr. Simmons' employment application and other papers he filled out at that time listed a residence address in Chipley, Florida. Mr. Simmons had no phone at that address, and he listed the phone number (904) 638-0195 as his number. He testified that this was the unlisted number of his wife's grandmother, who later died in early August, 1989. Mr. Simmons was selected from among 62 applicants for the vacant position, and was hired as a Human Services Worker I on June 3, 1988, at a gross biweekly salary of $392.92. He successfully completed his probationary employment period and achieved permanent career service status. As of August 5, 1988, his gross biweekly salary was raised to $430.82. Initially, Mr. Simmons worked the evening shift, from 3:00 P.M. until 11:00 P.M., and was assigned to Hayes cottage. He was one of three persons assigned to that cottage as Human Services Worker, with first-line responsibility for care and supervision of 23 mentally retarded residents of that cottage. Mr. Simmons' first Employee Performance Appraisal, dated December 2, 1988, rated him overall as exceeding job performance standards and stated in general that he had an excellent attitude in his position. The only mention in the Appraisal of job attendance was the notation that Mr. Simmons had difficulty in correctly filling out his leave and attendance record. The Appraisal was signed by Dorothy S. Bryan as his immediate supervisor and by Clay S. Shirey as reviewer. Mrs. Rose Simmons gave birth to the couple's second child, a daughter, during Mr. Simmons' first year of employment with HRS. The daughter was about ten months old at the time of Mr. Simmons' termination from his position in September, 1989. Mr. Simmons worked at two other jobs during the first months of his employment with HRS. In early August, 1989, Mr. Simmons moved to Tallahassee, where Mrs. Simmons had obtained employment. Mrs. Simmons had moved earlier, and the couple resided together in Tallahassee after Mr. Simmons moved. At that time Mr. Simmons worked two jobs. His other job was at a nursing home in Bonifay. His hours in that job were from 6:00 A.M. until 1:00 P.M. He resigned from the Bonifay job before the events giving rise to his termination. Because of his difficult work schedule and an unreliable car, Mr. Simmons was late for work a number of times even before he moved to Tallahassee. His attendance records show that his superiors approved differing types of leave with pay on all of these occasions, except for the tardiness which occurred August 31, 1989, a few days before his termination. According to testimony of Mr. Simmons' superiors and documents in evidence as to official Sunland policy, leave with pay ordinarily was authorized only if the employee reported in advance that he or she would be tardy or absent. Sunland Operating Procedure 60-2 requires that employees who are late or absent inform their supervisor before the beginning of the shift, or failing that, telephone within seven minutes after the start of the shift. This Policy also requires supervisors to document patterns of unexcused absences and tardiness on certain forms, none of which appear in Mr. Simmons' employment file or otherwise in the record. Mr. Shirey testified that Mr. Simmons usually did not call in advance when he was late for work. In February or March, 1989, Ms. Angie Russ replaced Ms. Bryan as Mr. Simmons' immediate supervisor. She continued to approve leave on the occasions, when Mr. Simmons was late for work, usually once or twice each two-week pay period. On April 6, 1989, Clay Shirey and Angie Russ conferred with Mr. Simmons about his job performance. As reflected by a memorandum dated April 7, 1989, they told him his performance in accurately completing client training data sheets was not adequate. The memorandum also indicates discussion of the "failure of [Hayes Cottage] staff to work together as a cohesive unit," and the need for staff (and, inferentially, Mr. Simmons) to take a more active role in client interaction. Mr. Simmons did not agree with this assessment and refused to sign the memorandum. On May 5, 1989, Clay Shirey and Angie Ross conferred with Mr. Simmons about his being late for work. A memorandum dated May 12, 1989, reflects this conference. For pay periods after that date, Mr. Simmons' supervisors continued to approve leave with pay when he would be late for work, usually 15 or 30 minutes each time. Commencing with the May 12, 1989, pay period, Mr. Simmons' hours were changed so that instead of working from 3:00 until 11:00 P.M., he worked from 2:00 until 10:30 P.M. The record does not directly reveal the reason for this change. On June 15, 1989, Mr. Simmons' next Employee Performance Appraisal was completed. Mr. Autry Ferrell signed as supervisor, and Mr. Shirey signed as reviewer. The Appraisal expressed some dissatisfaction with Mr. Simmons' attitude, although it rated his performance as meeting or exceeding job requirements as to all specifically rated items. Item No. 1 in the Appraisal stated that Mr. Simmons exceeded requirements for completing client training data forms, which had been the specific complaint documented in the April 7, 1989, memorandum. The Appraisal made no mention of any problem with Mr. Simmons' being late for work. Mr. Simmons' overall performance was listed as meeting job requirements. In his comments on the form, Mr. Simmons disagreed with the assessment concerning his attitude. On August 28, 1989, Mr. Ferrell and Mr. Shirey signed a memorandum addressed to Mr. Simmons, which stated: This is written to confirm that you received on this date an oral reprimand for failure to follow your established work schedule. This is considered the first occurrence for this offense. Any further violation of similar Standards of Conduct may result in more severe disciplinary action. Mr. Simmons refused to sign this memorandum, according to Mr. Shirey's note on the document. The Handbook provision referred to in the memorandum defines tardiness as "failure to follow established work schedules," and establishes a "standard" that the first occurrence will result in an oral reprimand; the second occurrence in a written reprimand; the third occurrence in a suspension of up to ten days, and the fourth occurrence in dismissal. Mr. Simmons' attendance records indicate that during August, 1989, preceding this reprimand, he had been 30 minutes late for work four times and 15 minutes late one time. On each such occasion, Mr. Ferrell had approved leave with pay for the time he was tardy. On Thursday, August 31, 1989, Mr. Simmons was ill. He did not telephone until 8:15 P.M. Mr. Shirey authorized sick leave with pay from 8:15 until 10:30, but did not approve leave with pay for the time before Mr. Simmons telephoned. This is the first instance of Mr. Simmons' not being allowed leave with pay for any absence or tardiness, even though Sunland Policy 60-2 clearly authorized leave without pay for previous occurrences. On Friday, September 1, 1989, at approximately 1:00 A.M., Mr. Simmons took Mrs. Simmons to Tallahassee Regional Memorial Medical Center. She was in labor with the couple's third child. She was admitted through the emergency room at 4:10 A.M. the same night, and gave birth at 5:02 P.M. the following day. (still September 1st). The next day, September 2, 1989, Mrs. Simmons had routine surgery involving an incision through the abdomen. She and the new baby were discharged from the hospital on Monday, September 3, 1989. Mr. Simmons did not report to work on September 1 through 4, 1989. He was caring for his other two children, ages 5 years and 10 months. They had day care arrangements during normal business hours when Mrs. Simmons worked, but no such arrangements were available to Mr. Simmons to his knowledge in the evening hours when he was to work at Sunland. His care of the children was necessary since Mrs. Simmons was not physically capable of caring for their children due to her operation. On Friday, September 1st, Mr. Simmons telephone Sunland and eventually spoke to Mr. Shirey. He told Mr. Shirey that his wife was in the hospital giving birth and that he had no one to care for his children at night. Mr. Shirey demanded that he come to work, and Mr. Simmons said he would come to work the next day if he possibly could. Mr. Shirey testified that Mr. Simmons stated unequivocally that he would report for work the next day, a statement Mr. Simmons denies. Mr. Simmons did not telephone Sunland on September 2nd through 4th. He testified that he had no money to use at a pay phone to make the long- distance call (he had missed payday during his absence) and lost his only change on one unsuccessful attempt to call. His last payday had been August 17th. Mr. Shirey testified that he attempted to reach Mr. Simmons on Monday, September 3, 1989 (Labor Day holiday), using two telephone numbers in Mr. Simmons' personnel file. Mr. Simmons had moved from Chipley to Tallahassee and had no telephone, so these efforts were unsuccessful. Respondent was aware that Mr. Simmons had moved to Tallahassee. However, since Mr. Simmons did not have telephone service during this time, his supervisors had no ready means to contract Mr. Simmons. No one from Mr. Simmons employment thought to check or contact him at either of the two Tallahassee hospitals. Tuesday, September 5th and Wednesday, September 6th, were Mr. Simmons' usual days off. On Thursday, September 7, 1989, he reported to work at Sunland. When summoned by Mr. Shirey, he showed Mr. Shirey a handwritten, signed note from Mrs. Simmons' attending physician, stating that Mrs. Simmons had delivered a baby and had surgery, and asking that Mr. Simmons be excused from work September 1st through 4th. Neither the original nor a copy of this note was placed in Mr. Simmons' file, although both Mr. Shirey and Mr. Parramore acknowledged during their testimony that Mr. Simmons had showed it to them on September 7th. Mr. Simmons was informed that he was being terminated. On Tuesday, September 5th, prior to Mr. Simmons' return on the 7th, Mr. Parramore had already prepared a memorandum recommending that Mr. Simmons be terminated for abandonment of position. The memorandum referred to the earlier reprimand for tardiness and to Mr. Simmons' late call-in on August 31st, when he was sick. The memorandum, also referenced Mr. Simmons' reasons for his absence on September 1, 1989. The memorandum stated that Mr. Shirey had informed Mr. Simmons that he needed to obtain medical certification of his wife's illness and the need for his presence, and that Mr. Shirey had informed Mr. Simmons that "he needed to get to work as soon as possible." Notably, it does not mention any absolute commitment by Mr. Simmons, during his phone conversation with Mr. Shirey, to report the next day. Even with all these facts listed in the memorandum, it was clear from the evidence that the main reasons for Mr. Simmons' employer's action was the fact that Mr. Simmons could not be located, that he did not call in on the 2d, 3rd, or the 4th and that Mr. Simmons was not believed to be telling the truth regarding the reasons for this absence and the reason no one called in. On September 7, 1989, a letter was mailed to Mr. Simmons confirming what he had been told verbally that day: that he was terminated for abandonment of position. The evidence demonstrates that Mr. Simmons did not intend to abandon or resign from his position at Sunland, when he was absent from work on September 2 through 4, 1989. He obtained a written medical certification and excuse, complying with Mr. Shirey's instructions as he understood them. He reported to work promptly on his next regular work day. Though he may not have been as diligent as he could have been in contacting his superiors, he had sufficient reason in his own mind to be absent from work, and the evidence shows he fully intended at all times to return to work.
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order finding that Petitioner did not abandon his position and that Petitioner be restored to his position as a Human Services Worker I at the Marianna Sunland facility. DONE and ORDERED this 5th day of September, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1990. APPENDIX TO CASE NO. 89-5623 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 28 of Petitioner Findings of Fact are adopted in substance, insofar as material The facts contained in paragraphs 27 and 29 of Petitioner Proposed Findings of Fact are subordinate. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-0700 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 H. Michael Madsen, Esquire Messer Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner's facility was established in the 1950's as a nursing home for welfare clients in Riviera Beach. In 1979, the facility was changed to an ACLF. At that time, a physician and a nurse from the County Health Department examined all residents and transferred those out who needed continuing nursing care. One resident from the nursing home continues as an ACLF resident. Mrs. Davis, the current administrator, has been employed at the facility since 1960 and lives on the premises. The current staff of the ACLF includes several family members: Mrs. Sutton's daughter, Sabrina; Mrs. Davis' daughter, Christie; the son of a former long-time employee, "Jr."; Amon Shaw and Patricia Roach, another long-time employee. The neighborhood where the ACLF is situated is a high crime area and the ACLF has been burglarized on several occasions. When the facility is burglarized, the typical burglary involves broken windows, food items are stolen, files are ransacked, and petty cash is taken. The ACLF is licensed for a census of 35 residents. Based on surveys conducted by respondent on August 3, 12, and September 9, 1987, several deficiencies were noted, including the unavailability of records to reflect that the facility was being administered on a sound financial basis; no assurances that the facility maintained an admission/discharge roster of residents containing all information required including records for residents receiving self-administered medications; no records of personnel policies for employees employed by the facility including work assignments for each employee; no work schedule of staff and for relief staff; no time sheets; no disaster preparedness plan available for review; no assurance that staff were free from communicable disease or; that there was present at all times, at least one staff member certified in an approved first-aid course, missing diet orders for residents, missing physical assessments for patients. The diet menu reviewed showed deficiencies in Vitamin A and did not have adequate servings from the meat, milk, vegetable and fruit groups. The facility was not providing a variety of foods, nor did it have standardized recipes for all items on the menu. The menus were not dated and planned one week in advance, or readily accessible for review by the residents. Menus and corrections were not kept on file for six months, mice and other rodent droppings were observed in the kitchen, the kitchen was not clean and there was no effective pest control program instituted. No management employee had completed a food service management course. One freezer did not contain a thermometer, and the meat was not properly stored in the freezers (ribs stored in a garbage bag). The fan in the kitchen was dusty and greasy, the ovens were dirty and contained food spills, the can opener was not clean and had dried food residue, the silverware holder was not clean and contained dirty silverware which was stored together with money, keys and other items. Drip pans were grease laden. The facility did not provide sanitary housing in that the showers were laden with mildew, areas occupied by residents were not climatically controlled in a manner conducive to the comfort of residents in that there were no cooling devices. Residents were not provided adequate space for hanging clothes, the beds were not in good repair with mattresses free from odor, stains or lumpy stuffings, showers did not have non-slip safety devices on the floor, and the building was not kept in good repair in that the front doors of the men's dormitory were rotting. There were torn and loose screen windows and doors, and torn and loose linoleum throughout the facility. The outside walls contained peeling paint. Clothing and mops were hung on fences and the inside walls and doors needed painting. Furniture in the dormitories was not kept in good repair in that cushions on the sofas in the living rooms were torn, the arms and backs of the sofas were torn, and the drawers in chests were broken or missing. The facility was not free of accumulations of possessions in that clothing bags were being kept on the residents' beds, old baskets, bottles, tin and other junk and debris was strewn over the back yard, the fire alarm test did not include testing of the smoke detectors. There was no documentation of the quarterly automatic sprinkler tests, and waste containers were not constructed of noncombustible material. The generator for the emergency lighting was not load-tested on a monthly basis, and the door between the boiler room and the exit access door was not self- closing. Exit signs were not illuminated. The rear yard contained debris, including a refrigerator which was not being used with doors attached which presented a safety hazard and an unsealed septic tank which was not being maintained. Follow up visits by respondent's staff revealed that while there have been correction of some deficiencies, numerous deficiencies continue at the facility and petitioner's staff has been counseled repeatedly with suggestions about curing problems and/or deficiencies which were documented on six times by Nan McDermitt, to wit: May 31, August 2, August 5, August 18, September 8, and September 19, 1988. A moratorium on placements was issued by Respondent on June 30, 1988, based on repeated deficiencies which were not corrected during follow-up visits, inspections and surveys of the facility by respondent's staff. Cecie M. Davis admits that there are ongoing deficiencies which were reflected in respondent's surveys provided by staff. Davis has placed thermometers in the refrigerator, although they are at times removed by employees who store meat in the refrigerator. The screen doors are cut by burglars during break-ins. Missing lights have now been installed, and they are all operating properly. Vinyl flooring has been repaired, and there are new rugs on the living room floors. The unsealed septic tank has been repaired and cots have been purchased for the storage of linen. The refrigerator which was not stored in the back yard has been moved and exterminators have been employed to eradicate the rodent problems. The ladies shower has been painted and new mattresses were bought to replace those which were lumpy or stained. Despite all these corrections, there are numerous deficiencies that remain uncorrected at the ACLF. In trying to correct all of the deficiencies, Administrator Davis points out that the building is old, located in a high crime area and is subject to repeated burglaries. She admits that a gas odor which emanates from the kitchen is not corrected. A large segment of the patient census is old and disoriented, and male patients, at times, urinate on the floors. Administrator Davis is making efforts to cope with the problems with the limited resources available, however numerous deficiencies remain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a final order sustaining the denial of the license renewal of petitioner's adult congregate living facility, Sutton Home For The Aged, based on repeated and multiple violations of the minimum standards. DONE and ORDERED this 16th day of February, 1989, in Tallahassee, Florida. JAMES E. BRADWELL 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 16th day of February, 1989.
Findings Of Fact Smith is employed as a resident life assistant by HRS at Sunland Center in Orlando, Florida. Her duties include the bathing, feeding and general care of mentally retarded children who are patients at Sunland Center. Smith is not permanently assigned to any unit of the facility, but rather is assigned to various units as needed. On May 11, 1977, Smith's supervisor, Francis Wingert, a registered nurse, as well as another registered nurse and the director of nursing, directed Smith to perform her duties in one of the units at Sunland Center. Without stating any reason, Smith refused to comply with the order of all three. Smith was subsequently suspended without pay for two work days by the Superintendent of Sunland Center.
