The Issue The issues are whether Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent is licensed to practice medicine in the state of Florida. She holds license number ME 0028693. 3 Respondent, a native of Manila, Philippines, attended medical school and received her M.D. degree in 1965 from Manila Central University. She completed an internship and residency in OB-GYN in Manila before immigrating to the United States in 1968. Respondent became a citizen of the United States in 1972. She obtained her license to practice medicine in the state of Florida in 1973. Thereafter, Respondent completed a residency in general practice in Portsmouth, Virginia, and a residency in pathology in Norfolk, Virginia. She is not board certified. Prior to October 23, 1996, Respondent was engaged in a solo practice of general and family medicine. Except for this proceeding, Respondent has never been the subject of disciplinary action in connection with her medical license. She has never had a medical malpractice claim asserted against her. Fiorinal No. 3 or Fiorinal with codeine is a legend drug as defined by Section 465.003(7), Florida Statutes. Fiorinal No. 3 is also a Schedule III controlled substance which is listed in Section 893.03, Florida Statutes. In March of 1991, Respondent began treating Patient G.C. for symptoms related to menopause and anxiety. Respondent's record of G.C.'s initial visit indicates that G.C. is allergic to penicillin and codeine. G.C. made 46 visits to Respondent's office from March 12, 1991 through February 21, 1995. On 37 of these visits, Respondent's records note G.C.'s allergy to codeine. On September 19, 1991, G.C. complained that her knee and calf on her right leg were hurting. Respondent ordered a venogram and prescribed Lorcet Plus for G.C. On December 13, 1991, G.C. complained that she had a cough, sore throat, and congestion. Respondent prescribed Lorcet Plus for G.C. in addition to other medication. G.C. made 15 visits to Respondent's office from June of 1995 through September of 1996. Respondent's records of these visits do not note G.C.'s allergy to codeine. Respondent did not charge G.C. for six of these visits. G.C. complained of pain and swelling in her left elbow on October 31, 1995. Respondent treated G.C. for bursitis and gave her a prescription for Fiorinal No. 3. Respondent did not charge G.C. for this visit. G.C. complained of pain in her elbow again on December 19, 1995. Respondent treated G.C. for bursitis and prescribed Fiorinal No. 3. Respondent did not charge G.C. for this visit. Respondent's records indicate that she saw G.C. for the last time on September 20, 1996. The records do not indicate the purpose of the visit. There is a notation which states, "Last time I'll give this Rx to her," followed by three prescriptions including Fiorinal No. 3. Respondent testified that she prescribed Fiorinal for G.C. because she had previously taken Lorcet with no problems or reactions. Lorcet, like Fiorinal, contains codeine. Allergic reactions to codeine can range from mere rashes to life-threatening problems. Accordingly, prescribing Fiorinal No. 3 for G.C. was contraindicated. Respondent concedes that G.C.'s medical chart was deficient in several ways. It failed to contain an adequate medical history, failed to reflect proper physical examinations, failed to reflect adequate tests and lab studies, and failed to fully document conditions/symptoms to warrant treatment rendered, including medications prescribed. Respondent and G.C. developed a social relationship in 1995. Respondent and G.C. were taking trips together, going out to eat together, and seeing each other quite often in a social setting. G.C. told Respondent that some investors in Sicily wanted to buy Respondent's medical practice. Respondent and the foreign investors could not agree on the terms of sale. Respondent lent G.C. a large sum of money in cash. G.C. would not re-pay the loan or acknowledge the debt. The friendship between G.C. and Respondent began to deteriorate. In March of 1996, G.C. contacted Lynn Flanders, a narcotics investigator from the Escambia County Sheriff's Department. G.C. informed Ms. Flanders that Respondent had written a prescription for Fiorinal No. 3 in G.C's name with the intention of diverting the medicine for her own consumption. The prescription was dated January 15, 1996. Respondent's records do not indicate that G.C. made a visit to Respondent's office in January of 1996. G.C. planned to meet Respondent at a restaurant on March 19, 1996. Before the meeting, Investigator Flanders had the prescription filled at a local drug store. She equipped G.C. with an audio listening device. Ms. Flanders also searched G.C.'s car and person. Finding no drugs or money in G.C.'s possession, the investigator gave the bottle of Fiorinal capsules to G.C. and sent her to meet Respondent at the restaurant. Investigator Flanders seated herself in the restaurant so that she could observe Respondent and G.C. during the meal. Respondent never left the table. Ms. Flanders was unable to observe G.C. when the confidential informant went to the ladies' room. The investigator did not see G.C. hand the prescription bottle to Respondent. After Respondent and G.C. ate lunch, they left the restaurant. Investigator Flanders subsequently discovered that the audio tape was inaudible. Ms. Flanders told G.C. to call the sheriff's office if the doctor gave her another prescription and asked her to get it filled. As referenced above, Respondent gave G.C. a prescription for Fiorinal No. 3 on September 20, 1996. Although the prescription was in G.C's name, Respondent intended to consume the medicine herself. G.C. contacted Investigator Flanders again. She told Ms. Flanders about the prescription. The investigator took the prescription and had it filled at a local drug store. G.C. planned to meet Respondent at another restaurant on September 15, 1996. Before the meeting, Investigator Flanders equipped G.C. with an audio listening device, searched her car and person, gave her the bottle of Fiorinal No. 3 capsules, and sent her to meet Respondent. Investigator Shelby and his partner arrived at the restaurant before G.C. or the Respondent. Investigator Shelby positioned himself in the restaurant so that he could observe G.C. and Respondent. Investigators located outside of the restaurant monitored the listening device. They recorded the conversation between Respondent and G.C. Investigator Shelby saw G.C. take the bottle containing 30 Fiorinal No. 3 capsules from her shirt pocket and pass it under the table to Respondent. Respondent leaned forward, accepted the bottle under the table, and placed it in her purse. Respondent left the restaurant and entered her vehicle. She was then placed under arrest. The bottle of medicine, containing 30 capsules, was recovered from her purse. Respondent's testimony that she did not intend to divert the narcotic for her own consumption is not persuasive. Criminal charges against Respondent are being processed through the Pretrial Intervention Program for nonviolent first offenders. Charges against Respondent will be dismissed if she does not commit any offense for ten months after March 27, 1997, and provided that she satisfactorily completes the program. As part of the ten-month probation, Respondent agreed to voluntary urinalysis and compliance with the mandates of her recovery program through the Physician's Recovery Network (PRN). Respondent has a history of chronic daily headaches and hypertension. She has been taking Fiorinal No. 3 which contains codeine and aspirin since 1972. Respondent was diagnosed with a bleeding ulcer just before her arrest in September of 1996. Her treating physician prescribed Fioricet which contains codeine but no aspirin. Respondent accepted this prescription without telling her treating physician about her codeine dependency. Respondent divorced her husband for the second time in August of 1996. Around the time of her arrest, Respondent experienced a lot of stress as a result of her relationship with her ex-husband. PRN is Florida's impaired practitioner program. Pursuant to contract with Petitioner, PRN offers educational intervention, treatment referral, and rehabilitation monitoring services for health care workers in Florida. The PRN's director, Dr. Roger Arthur Goetz, became aware of Respondent's arrest on October 3, 1996. On his recommendation, Respondent voluntarily agreed to undergo an evaluation by the following three doctors in Pensacola, Florida: (a) Dr. Rick Beach, an addiction specialist; (b) Dr. Doug H. Fraser, a board certified psychiatrist; and (c) Dr. Thomas Meyers, a psychologist. Dr. Beach and Dr. Meyers agreed that Respondent was impaired due to a substance abuse problem. All three doctors agreed that Respondent suffered from a depressive disorder and other psychological problems. Dr. Beach, the addictionologist, determined that Respondent had a dysfunctional relationship with her ex-husband, an unhealthy relationship with G.C., and a probable dependence on opiates. Dr. Fraser, Respondent's psychiatrist, diagnosed Respondent with generalized anxiety disorder and dysthymia. Generalized anxiety disorder is a life-long disorder from which the patient experiences a chronic sense of nervousness, tension, and worry. A patient suffering from this condition will have some physical symptoms such as gastrointestinal problems, headaches, muscle tension, or difficulty sleeping. Dysthymia is also a chronic life-long disorder which causes patients to suffer from chronic minor depression more days than not. On October 23, 1996, Respondent entered into a Voluntary Agreement to Withdraw from Practice with Petitioner. This agreement states that Respondent shall cease practicing medicine until Petitioner issues a Final Order in this case. On November 4, 1996, Respondent entered Jackson Recovery Center in Jackson, Mississippi. This facility was an in-patient substance abuse treatment center. Respondent's treating physician, Dr. Lloyd Gordon, admitted her for treatment with the following diagnosis: (a) Axis I, opioid dependence and dysthymia with anxiety; and (b) Axis II, avoidant and dependent traits. Respondent subsequently entered a residential treatment program, the Caduceus Outpatient Addictions Center (COPAC), in Hattiesburg, Mississippi. COPAC specializes in the treatment of physicians and other health care workers who abuse controlled substances. Respondent remained in this residential program for almost three months. She was discharged from COPAC on February 21, 1997. Respondent signed an Advocacy Contract with PRN the day that she was discharged from COPAC. The contract established a five-year monitoring period during which Respondent agreed to abide by certain terms and conditions, including but not limited to, the following: (a) to participate in a random urine drug and/or blood screen program; (b) to abstain from the use of controlled substances; (c) to attend group self-help meetings such as AA or NA; (d) to attend continuing care group therapy; and (e) to attend a twelve-step program for recovering professionals. In March of 1997, Respondent went to her office to see patients. She wrote prescriptions for some of these patients. She was under the impression that she could return to her practice because she had been therapeutically cleared to practice by COPAC. PRN learned that Respondent was practicing medicine in violation of her agreement to voluntarily withdraw from practice. PRN advised Respondent that she could not go into her office to see patients or write prescriptions until Petitioner gave her that right. Respondent immediately ceased her practice. Upon her discharge from COPAC, Respondent continued to see her psychiatrist, Dr. Fraser. In May of 1997, Respondent told Dr. Fraser that she was experiencing forgetfulness and panic attacks. She complained of having difficulty making decisions and sleeping. Respondent was feeling depressed and having suicidal thoughts. Dr. Fraser increased her antidepressant medication and referred her to a local counseling center. Respondent went to visit her family in California from May 25, 1997 through June 6, 1997. She did not tell Dr. Fraser that she was going out of town. However, she did tell one of the therapists from Dr. Fraser's office about the trip. Respondent saw Dr. Fraser again on June 18, 1997, when she returned to Pensacola. He made a tentative diagnosis of bipolar disorder and began appropriate treatment. Respondent was feeling better when she saw Dr. Fraser on June 25, 1997. Respondent moved to California to live with her sister on July 6, 1997. This move was necessary because Respondent had lost her home as well as her practice. While she was in California, Respondent saw a psychiatrist, Dr. Flanagan. She also attended AA meetings in California. Respondent returned to Pensacola a week before the hearing. She saw Dr. Fraser on August 21, 1997. Dr. Fraser was not aware that Respondent had been living in California and receiving treatment from Dr. Flanagan. During her visit with Dr. Fraser, Respondent admitted that she had a craving for codeine when she was tense. However, she denied use of any prescription drugs except those being currently ordered by her doctors. Respondent reported on-going mood swings even though Dr. Flanagan had increased her Depakote. She verbalized fantasies involving violent behavior toward G.C. Respondent revealed that she was experiencing grandiose delusions. She admitted that she was not ready to return to medical practice. Dr. Fraser concurs. Respondent needs intensive individual psychotherapy for at least six months on a weekly basis. At the time of the hearing, Respondent had not begun such therapy. The record indicates that Respondent was a caring and compassionate physician. Respondent's elderly patients testified that Respondent treated them with extraordinary concern when other doctors refused. Respondent's colleagues in nursing home settings attested to her skill and proficiency in the care of the elderly. None of these patients or associates were aware of Respondent's drug dependence or psychological problems before her arrest. Respondent is "in recovery" for her drug dependence. However, she is not mentally, emotionally, or psychologically ready to practice medicine with reasonable skill and safety for her patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order indefinitely suspending Respondent's license to practice medicine until she is able to demonstrate the ability to practice with reasonable skill and safety followed by five years of probation with appropriate terms, conditions, and restrictions, and imposing an administrative fine in the amount of $4,000. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James M. Wilson, Esquire Wilson, Harrell and Smith, P.A. 307 South Palafox Street Pensacola, Florida 32501 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On August 5, 1994, Petitioner was arrested in Dade County on drug charges. Later that same month, she was found guilty of (in Dade County Circuit Court Case No. 94-26435-A), pursuant to a plea of no contest, the "purchase or possession with intent to purchase cocaine, possession of cocaine, and unlawful possession of cannabis as set forth in Counts 4, 5 & 6 of the Information." Adjudication of guilt was withheld. Petitioner was "sentenced [as a first-time offender] to credit for time served: to wit: SIX (6) DAYS as to Counts 4 & 5; and as to Count 6 the entry of [a] sentence [was] suspended." Thereafter, Petitioner voluntarily enrolled in a six- month, outpatient drug treatment program offered by the Family Health Center. While participating in the program, she attended Alcoholics Anonymous (AA) meetings. Petitioner successfully completed the Family Health Center drug treatment program in February of 1996. (She has not participated in any drug treatment program since that time, although she has remained in contact with her counselor who had worked with her at the Family Health Center.) Some time following her successful completion of the Family Health Center drug treatment program, Petitioner began experiencing personal problems and started using illegal substances again as her way of dealing with these problems. She continued to engage in such unlawful conduct until approximately nine months ago, when she had a "spiritual" awakening and came to the realization that "[t]he lifestyle that [she was] liv[ing was] not for [her]." She started attending church on a regular basis and relying upon her religious beliefs, rather than drugs, to weather the difficult periods in her life. Since that time, she has remained drug-free, and it appears that she is fully committed to continuing her abstinence from the use of illegal substances. In or about March of 1999, after passing a drug test, Petitioner was hired by United Cerebral Palsy (UCP) to work as a patient technician serving disabled clients. Petitioner was employed by UCP for approximately six weeks. Her employment was terminated after background screening revealed the findings of guilt that had been entered against her in Dade County Circuit Court Case No. 94-26435-A in August of 1994, which disqualified her from employment by UCP as a patient technician. Petitioner was told that she could reapply for a patient technician position if and when she obtained an exemption from disqualification from the Department. On April 5, 1999, Petitioner submitted such a request to the Department. Petitioner's request was reviewed by a committee composed of three Department employees. Petitioner appeared before the committee on May 6, 1999. She forthrightly told the committee about her post- treatment drug use. Two of the committee members recommended that Petitioner's application for an exemption be granted. The remaining committee member recommended that the application be denied. The matter was then referred to the District 11 Legal Office, which recommended denial of the application. The Acting District 11 Administrator, Sara Herald, followed the Legal Office's recommendation and, by letter dated May 13, 1999, notified Petitioner of her (Ms. Herald's) determination to deny Petitioner's application and of Petitioner's right to "request an administrative hearing" on the matter. Petitioner requested, and subsequently was afforded, such a hearing. Having considered the evidence presented at that hearing, including Petitioner's testimony (particularly that portion of her testimony concerning the lifestyle changes that she has made over the past nine months and the reasons for these changes, which testimony the undersigned finds credible), the undersigned is convinced that Petitioner has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of October, 1999.
The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
The Issue By agreement of the parties, the issues to be resolved herein are as follows: Whether or not Alachua County denied Petitioner promotion to the position of Drug Counselor II because of her race (black) over her white counterpart. Whether Alachua County denied Petitioner promotion to the position of Victim Advocate Director and revised the position qualifications to preclude Petitioner because of her race (black). If either of these issues were resolved in Petitioner's favor, Alachua County would be guilty of an unfair employment practice pursuant to the Florida Human Rights Act of 1977, as amended [Section 760.10 et seq. F.S.].
Findings Of Fact Petitioner is a black female. She was 41 years of age at the time of formal hearing. Between April 20, 1984 and approximately April 30, 1989, Petitioner was employed by Metamorphosis. Metamorphosis is an organization that was part of the Alachua County Department of Corrections. The Alachua County Department of Corrections was subsequently renamed the Department of Criminal Justice. Petitioner initially was hired as a Drug Counselor I. Metamorphosis' primary goal is to provide long-term, multi-disciplinary treatment and rehabilitation for chronic substance abusers. It accepts only adults with an on-going history of substance abuse with any drug, other than alcohol, as the primary addictive agent. The program's main goal is to help such people become socially functional again. Petitioner initially testified that she had applied for the position of Drug Counselor II on six separate occasions, but testified in detail to only five. Petitioner never received the position of Drug Counselor II. Petitioner professed that she first applied for the Drug Counselor II position in October 1984, approximately six months after she began employment as a Drug Counselor I. However, Petitioner's Alachua County personnel file, which is required to be kept intact for 75 years, does not contain any application by Petitioner for the position of Drug Counselor II in 1984. Petitioner first stated that she was interviewed for the Drug Counselor II position in 1984 by James Whitaker, a white, and Ed Royal, a black. Petitioner later testified that Jim Whitaker and Scott Simmons, a black, interviewed her in 1984. Mr. Simmons did not testify. Mr. Royal did not testify. Mr. Whitaker did not confirm interviewing Petitioner for the Drug Counselor II position in 1984, but he stated that he had participated with Ed Royal in the hiring interview for Petitioner when she was initially hired as a Drug Counselor I from outside the program approximately April 20, 1984. The Drug Counselor II position was filled in 1984 by James Santangelo, a white, who was hired from outside the program to begin work in 1985. Historically, the Drug Counselor II positions within Metamorphosis were the senior therapist positions which required background in community clinical therapy. Petitioner's qualifications for Drug Counselor II as of 1984 were as follows: She received of Bachelor of Science Degree in Criminal Justice from Florida Memorial College in Miami with a minor in Urban Services. She had acted as Vice-president of the Board of Directors for Sexual Abuse Resources Center and was also a public speaker for the Commission on "status of women family violence". At the time Petitioner allegedly applied for the position of Drug Counselor II in 1984, she had been a Drug Counselor I for approximately six months. As Drug Counselor I, Petitioner had counseled individually and in groups, facilitated therapeutic and pre-vocational groups, supervised clients in employment training, vocation, and mock job interviews. She assisted in the intake process and coordinated and provided recreational activities for the clients. She distributed medication to the residents, handled negative attitudes of residents, monitored urinalysis testing, wrote letters to probation officers and judges, kept records, and maintained files for residents, and other work-related duties. Petitioner completed intake interviews, qualified individuals for acceptance or denial into the Metamorphosis Program, supervised and conducted structured groups, trained Drug Counselor Aides for the night shift, signed-off on clients' psycho/social evaluations, and assisted newly hired Drug Counselor II's. James Santangelo, who received the Drug Counselor II position in 1984, had qualifications as follows: Prior to coming to Metamorphosis, he worked for five years in a forensic mental hospital, the North Florida Evaluation and Treatment Center (NFETC). Four of those five years he was a therapist supervisor in a psychiatric unit. He ran therapy groups, scheduled concerns with the staff, held individual sessions with clients, taught adjunctive therapies to the clients, such as stress management, anger management, and drug abuse techniques. Prior to that, he was a school teacher. Santangelo received a Bachelor of Arts with honors from the College of Education at the University of Florida, majoring in psychology. Santangelo also served as an outreach worker for the Alachua County School Board from January through June 1978. In this position he was the first person to contact families whose children were having problems with truancy or whose children were suspected of being victims of child abuse or neglect. He also had an employment history of extensive special skills. Mr. Santangelos's qualifications for the Drug Counselor II position were superior to Petitioner's in 1984, if, indeed, she applied in that year. Petitioner professed that the second time she applied for the Drug Counselor II position was in 1986, when she had approximately two years experience as a Drug Counselor I within the Metamorphosis program. Again, neither Petitioner nor Respondent (by way of Petitioner's personnel file) had any copy of such an application. Petitioner testified that she was interviewed for the position of Drug Counselor II in 1986 by either Jim Whitaker and James Santangelo or by Jim Whitaker and Ed Royal. Neither Whitaker nor Santangelo confirmed that an interview of Petitioner for Drug Counselor II occurred in that year. Ed Royal did not testify, but it was shown that Ed Royal, a black, actually made the appointment of Tootie Richey, a white female, to the Drug Counselor II position which was open in 1986. Ms. Richey was hired from outside the program. Petitioner had "heard" Ms. Ritchey was a licensed clinical social worker but actually had no way of comparing her own qualifications with Ritchey's. Sometime in 1986, the State of Florida had established a means by which persons working with addiction rehabilitation could become "Certified Addiction Professionals" (CAPs) if they had a college degree, or "Certified Addiction Associate Professionals" (CAAPs) if they did not have a college degree. Mr. Whitaker became a CAAP in 1986 and Santangelo became a CAP in 1987. Petitioner never received such certification. In 1987, Metamorphosis was somewhat restructured so that Drug Counselor II positions became supervisory positions in the program. There were then two Drug Counselor II positions. One Drug Counselor II would supervise the Drug Counselor I's and the other Drug Counselor II would supervise the Drug Counselor Aides. Petitioner's first documented application is dated February 2, 1988. She was applying at that time for a position as an Evaluation Rehabilitation Case Worker I, not Drug Counselor II. Petitioner was referred for that position as a qualified candidate, but Edward Woodbury, also black, was selected for that position. In her testimony, Petitioner professed to have applied for Drug Counselor II, Rehabilitative Case Worker, and Program Coordinator by way of "Applicant Update Sheets" filed on June 27, 1988, October 4, 1988 and November 29, 1988. The greater weight of the credible evidence shows that Petitioner's June 27, 1988 application (P-1) was for promotion to be Program Coordinator of the Metamorphosis Program. This document, filled out at that time entirely by Petitioner, asserts that she had previously applied for Rehabilitation Case Worker and Drug Counselor II, but does not state when she applied. At that time, Jim Whitaker, a white, was the Program Coordinator. During the 1987 reorganization, the Program Coordinator position had been changed from clinical duties to administrative duties which Whitaker did not want to do and did not feel capable of handling. Whitaker therefore requested a "downward promotion" from Program Coordinator to some clinical position. Since there was no vacant clinical position (either as Drug Counselor II or otherwise) in the program, the Alachua County Personnel Director, Colleen Hayes, suggested that the position of Program Coordinator be posted as needing to be filled but that the job posting be made only within the Metamorphosis program itself so that only Metamorphosis staff would be allowed to apply. Ms. Hayes further suggested that when the promotional decision was made, Whitaker should be allowed to go into the lower position vacated by whatever Metamorphosis staff member was promoted into the Program Coordinator position currently held by Whitaker. It was understood that Whitaker would suffer no decrease in pay in the lower position of Drug Counselor II. Ms. Hayes' suggestion was followed, and ultimately, James Santangelo, then a Drug Counselor II, was selected to replace Whitaker as Program Coordinator. Whitaker exercised his option to take Santangelo's vacated Drug Counselor II position. Contrary to Petitioner's testimony, Santangelo's Drug Counselor II position was never advertised nor open to competitive interviewing at that time, and therefore there was no Drug Counselor II position vacant for which Petitioner could have applied. However, Mr. Whitaker's qualifications for the Drug Counselor II position were clearly superior to Petitioner's, anyway. At the time of Whitaker's "downward promotion," Whitaker's qualifications (for Drug Counselor II) included 15 years of experience on the Metamorphosis staff, beginning on October 14, 1974, as an entry level Drug Counselor I on night shift for one and a half years. He had served on the day shift for one year and then been promoted to Drug Counselor II where he had served until 1976. He had life experience as a drug abuser, including 13 months of Metamorphosis residential care for drug abuse, which was and is considered very valuable in a drug addiction counselor. He also had, over time, worked every shift, every level of group with every client from clients #86 to #1100 sequentially, and with every staff person in Metamorphosis to that date. Whitaker also had been Program Coordinator from 1978 to 1988. At the time of Whitaker's "downward promotion," Santangelo's qualifications for Program Coordinator included all of those set out supra in Finding of Fact 11, plus approximately two years as a Drug Counselor II. By the time of Whitaker's "downward promotion", both Whitaker and Santangelo had been state certified through examination. (See Finding of Fact 15). At the time of Whitaker's "downward promotion", Petitioner had the same qualifications set out supra in Finding of Fact 10, plus an additional two years as a Drug Counselor I. She was not state certified as an addiction professional. By comparison, James Santangelo's qualifications for the Metamorphosis Program Coordinator position were clearly superior to those of Petitioner. Also, the record reflects no persuasive evidence that Respondent's downward transfer process, which on this occasion accommodated Mr. Whitaker, was contrary to, or unique within, the standard operating procedure of the Respondent's personnel department. There likewise is no persuasive evidence that the downward transfer process required the promotion of a Drug Counselor II (Santangelo) over a Drug Counselor I (Petitioner) into the Metamorphosis Program Coordinator position, so as to be "rigged" to prohibit Petitioner, as a minority employee, from being promoted. The greater weight of the credible evidence shows that Petitioner next applied for a Drug Counselor II position on October 4, 1988 (P-2). That document, made out solely by Petitioner, asserts she previously applied for Drug Counselor II and Program Coordinator without stating any dates. Lennard Perry, a black, who was seeking a downward transfer from Evaluation and Rehabilitation Case Worker I was ultimately hired for the Drug Counselor II position, but he was hired on a competitive basis. Petitioner's November 29, 1988 "Applicant Update Sheet" (P-3), again made out solely by herself, asserts she had previously applied for the Drug Counselor II position in September 1988. There is no documentary evidence of any kind of September 1988 application by Petitioner. Petitioner herself testified that the Drug Counselor II position was unfunded after her first 1988 application and then stated it was unfunded after her third 1988 application. This confusion may account for her saying at one point that she had applied for Drug Counselor II six times. However, Respondent's witnesses were credible and persuasive that the Drug Counselor II position was phased out after Petitioner last applied due to lack of funding and further reorganization. In making the foregoing findings of fact, the undersigned has rejected the testimony of Petitioner and Warren A. McCluney that a white man named Alan Pappas ever filled the Drug Counselor II position after any of Petitioner's 1988 applications. Their unsupported testimony on this issue is not probative that Alan Pappas was ever employed full-time and paid by Metamorphosis, even though Mr. McCluney stated that he saw Mr. Pappas receive a paycheck at the same time Mr. McCluney himself did. Mr. McCluney did not specify that the check Pappas allegedly received was a Metamorphosis or county check. He also testified that Mr. Pappas was only present at Metamorphosis for nine months during 1987, and that period bears no relationship to Petitioner's not being promoted in 1988. Other witnesses clearly testified that Mr. Pappas never worked for Metamorphosis in any capacity at any time. There is no evidence or pleading of record to support Petitioner's allegations that she filed any formal discrimination claim before 1988. The position of Victim Advocate Director was advertised by posting of the job description from February 13 to February 17, 1989. Petitioner applied for the position on February 16, 1989. Respondent received so few applicants in response to the February 1989 Victim Advocate Director job posting that the Respondent's Personnel Director feared the hiring procedure would be compromised. No one was hired for the Victim Advocate Director at that time. The dearth of applicants was believed to be the direct result of the low number of Victim Advocate Programs statewide so that, in turn, few people could meet the job position requirement of a minimum of one year's supervisory experience in a Victim Advocacy Program. It was ultimately decided to rewrite the minimum qualifications and re-advertise. At no time material did Petitioner have one year's supervisory experience in a Victim Advocacy Program. The only pertinent revision of the minimum position qualifications was that one year of supervisory experience in any related area was acceptable the second time the Victim Advocate Director position was advertised. The second time the Victim Advocate Director position was advertised, an applicant's supervisory experience did not have to be specifically in a Victim Advocate program. The job position revision was reviewed by Ida Rawls-Robinson, the Director of the Alachua County Equal Opportunity Office prior to publishing it. Ms. Rawls-Robinson, a black, approved the amended requirements because the amendment broadened the base of the pool of qualified people, thus inferentially making the position more accessible to minorities. Before the second job-posting, Petitioner received a letter dated April 14, 1989 from Personnel Director, Colleen Hayes, advising Petitioner that the job criteria for the position of Victim Advocate Director had been revised. In Colleen Hayes' April 14, 1989 letter, Petitioner was asked to complete the enclosed application update sheet if she felt she was still qualified after the revision of the minimum qualifications, but she did not do so. Instead, Petitioner forwarded a memorandum to Colleen Hayes to the effect that since her original application was less than six months old, Petitioner would not submit an application update in response to the revised job description, although she remained interested in the position. The second job-posting with the broadened minimum qualifications was posted from April 17 to April 29, 1989. Petitioner was not referred for the position of Victim Advocate Director because she did not have the minimum one year supervisory experience in the revised category either. The requirements had always required one year of supervisory experience in any event. The position of Victim Advocate Director was never actually filled by Respondent. It was ultimately moved to, and funded by, the State Attorney's Office.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order dismissing the petition for relief filed herein. DONE and ENTERED this 24th day of July, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 Covered under preliminary matters 2-5, 7-8, 17-18, 20-21 23-26, 29-39 Accepted 6, 9, 15-16, 19, 27-28 Accepted in substance but modified to more accurately reflect the record as a whole, to eliminate hearsay, and to describe and resolve the issues as raised by Petitioner. 22 Rejected as stated. Petitioner initially testified to this. Later, she professed that the budget cuts occurred after the third application. The RO reflects all reconciled, competent, credible evidence. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
The Issue Is Petitioner entitled to an exemption from disqualification, to have direct contact with unmarried minor clients or clients who are developmentally disabled, having been disqualified from direct contact with those persons by virtue of an offense related to drug abuse prevention and control, Chapter 893, Florida Statutes?
Findings Of Fact In State of Florida v. Victor Days, in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida, Case No. 93-33378, Petitioner entered a plea of nolo contendere to the offense of cocaine possession. This case was in relation to a criminal law offense prohibited by Chapter 893, Florida Statutes. Adjudication was withheld. Petitioner received a one year probation based upon the order of the court entered October 22, 1993. Following the entry of his plea to the offense of possession of cocaine, Petitioner went through a drug screening to be evaluated concerning response to his use of drugs. The result of that screening was a recommendation that Petitioner receive out-patient treatment for his use of cocaine. Petitioner did not participate in an out-patient program. Eventually he enrolled in an in-patient program to address his drug abuse. Although Petitioner offered his plea to the offense of possession of cocaine and accepted the disposition, at the hearing in the present case Petitioner contended that he had not committed the offense for which he stood accused and entered his plea. But the plea entered contemplates a lack of agreement with the truth of the charges. Petitioner also complained in the administrative hearing that he had not received adequate advice from his attorney in the criminal law case. Petitioner does concede that he had a problem with the abuse of crack cocaine that existed before and beyond his arrest for the charge of possession of cocaine. Additionally, Petitioner admits that during this time he abused alcohol. Petitioner describes that he did not "drop" the cocaine that he was arrested for, and that charging him for that offense was an "injustice." Petitioner describes the circumstances of his arrest as a "wake-up call," concerning the fact that he was involved with crack cocaine, if not on the occasion of his arrest, at other times. Petitioner describes his use of crack cocaine as being associated with binges in which he would have $100 and spend it on the crack cocaine. He can recall at least eight occasions in which he would "binge" on crack cocaine. In his testimony at the administrative hearing, Petitioner describes his use of crack cocaine in that period of time as constituting an addiction. Petitioner acknowledges that in the period 1993 through 1994, he suffered from addiction, to the extent that he had a co- dependency for crack cocaine and alcohol. In the years 1992 through 1994, Petitioner had worked for Jackson Memorial Hospital in Dade County, Florida, in the Environmental Services Department. This employment did not include direct contact with patients. Following the disposition of Circuit Court Case No. 93- 33378, roughly a year later, on November 15, 1994, Petitioner entered a residential program for drug abusers, referred to as Faith Farm Ministries in Fort Lauderdale, Florida. Specifically, it was a program to benefit adults with drug abuse problems. The program was administered by Fort Lauderdale Rescue Tabernacle, Inc., Alpha Ministry. The program was designed to help the participants deal with their drug dependency and to reorder their lives for the better. Petitioner successfully completed the program as evidenced by a certificate issued to the Petitioner on May 1, 1995. For approximately eight months beyond his graduation from the drug abuse program, Petitioner served as a peer counselor for other adults enrolled in the program. During his probation, Petitioner's probation officer referred Petitioner to the court for having violated probation. Petitioner was not found in violation of his probation. When Petitioner was not found in violation of his probation, Petitioner had already attended the residential drug treatment program. 1l. Following the completion of his drug abuse program, Petitioner worked at a K-Mart in Miramar, Florida, for approximately six months in 1995, as a salesperson. Later Petitioner took a position with Chemical Addictions Recovery Effort, Inc. (Chemical Additions Recovery), in Panama City, Florida, as a Human Service worker, with direct contact with minors who are 13 to 17 years old. More specifically, those youngsters are part of a program referred to as Starting Over Straight (S.O.S.), within the umbrella of Chemical Addictions Recovery. In this position, Petitioner assisted the juveniles who had drug-related problems. This position was held for approximately three months. Petitioner then took a position with a program within the Chemical Addictions Recovery, referred to as Detox. That program, in which he had direct contact with the clients, was in association with adults and children suffering with problems related to alcohol and drugs. Petitioner held that position for approximately three months. During Petitioner's affiliation with Chemical Addictions Recovery, Petitioner was required to undergo a background check, based upon his holding a position of trust and responsibility, as an employee with direct contact with minor clients. When the screening was completed, it revealed Petitioner's criminal law case associated with the possession of cocaine. This disqualified the Petitioner from continuing to have direct contact with unmarried minor clients or clients who are developmentally disabled. Petitioner has an interest in continuing employment involving direct contact with unmarried minors, such as the children who were participants in the S.O.S. For this reason Petitioner has pursued his request for exemption from disqualification. At the time of the hearing Petitioner was employed as a floor-care worker with Bay Genesis Eldercare in Panama City, Florida. He had held that position for approximately three months. On the date of hearing Petitioner was 36 years old. Petitioner believes that his life has changed following participation in the residential drug treatment program. Petitioner in his day-to day life works to tell people that drugs and alcohol are a waste of time. That was the motivation Petitioner had for working as a Human Service worker at Chemical Addictions Recovery. Petitioner does not sense any difficulty in dealing with children. He believes that children look up to him. At present Petitioner does not use alcohol or drugs. Petitioner attends church. Mary Cruel, Petitioner's great-aunt, is a supervisor at S.O.S. She describes that program as a residential program for children who have a problem with substance abuse. Ms. Cruel is familiar with the Detox program associated with Chemical Addictions Recovery. That program, as Ms. Cruel describes it, is a crisis intervention program for adult women and some children. Ms. Cruel recalls that Petitioner had a problem with drugs and alcohol, as part of overall life problems. In response, Ms. Cruel helped to place the Petitioner in the Faith Farm Ministries program. As Ms. Cruel describes it, Petitioner's participation in the Faith Farm Ministries program was voluntary. Participation in that program was felt to be the better choice, in that it had a spiritual emphasis. Ms. Cruel communicated with the Petitioner while he was participating in the drug rehabilitation program. She observed that the Petitioner was passionate about getting well, and that he quit blaming others for his difficulties. Now Ms. Cruel sees the Petitioner about three times a week. Ms. Cruel observes that her husband is close to the Petitioner. Ms. Cruel's husband does not abuse drugs. Ms. Cruel has observed the Petitioner trying to encourage other persons, who have problems with drugs to get into treatment and in conversation with others, Petitioner refers to his life experience. Ms. Cruel notes that Petitioner wants to work in a substance abuse program. Ms. Cruel is aware that Petitioner earns more money at his present employment than he did in the position that he was dismissed from with Chemical Addictions Recovery. Finally, Ms. Cruel observes that Petitioner lives a more regular life than he did before dealing with his addictions, and that Petitioner stays clean and sober one day at a time without being seen to have regressed. Rosemary G. Balkcom, R.N., C.D., a nursing services supervisor at Chemical Addictions Recovery, in correspondence, notes that Petitioner in working in the Detox program related well with clientele and that his overall attitude toward the persons participating in the program was one of genuine concern and empathy. Further, Ms. Balkcom notes in her remarks that Petitioner enjoys being able to assist and provide guidance for the clientele in the program. Finally, Ms. Balkcom notes that if Petitioner were allowed to continue to work in the program, and gained required education and training, Petitioner would present a positive role model for others. Amy Shackleford, Petitioner's co-worker, notes in correspondence that Petitioner has a genuine care for juvenile residents, and that Petitioner is active, motivated, honest, and dependable. Ms. Shackleford notes that young residents with low self-esteem have become actively involved with Petitioner. Ms. Shackleford notes that Petitioner is a perfect role model, and a positive influence in helping young people grow into productive citizens.
Recommendation Upon consideration the of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered exempting Petitioner from disqualification to work in a position of special trust or responsibility that would allow direct contact with unmarried minor clients or clients who are developmentally disabled. DONE AND ENTERED this 18th day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1998. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 100A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Victor Renaldo Days 1003 McKenzie Avenue Panama City, Florida 32401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
